Covid, Prayer, and Protest: the Battle for the First Amendment in 2020
On November 25, 2020, the U.S. Supreme Court flunked New York State’s Covid-19 restrictions because those restrictions limited houses of worship to as few as 10 parishioners but allowed nearby businesses to serve hundreds of customers. That decision was the latest development in a tumultuous year in which the First Amendment became a battle ground between church and state like never before.
In 2020, religious organizations nationwide claimed that State Covid restrictions unconstitutionally targeted them while favoring both routine commercial activity and the political protests that erupted after the death of George Floyd. The constitutionality of Covid restrictions became a bellwether issue for a newly re-constituted Supreme Court. This article summarizes the First Amendment’s wild ride in 2020.
Covid Arrives and States Respond
In March 2020, Covid emerged in the U.S. as a deadly respiratory virus transmitted through close personal contact. States quickly responded with broad lock down orders intended to limit social spread of the virus. Typical state responses barred all group activities, including religious activities, but then exempted a wide range of “essential services” from restriction. Religious organizations immediately challenged these restrictions claiming they discriminate against the free exercise of religion in violation of the First Amendment.
The Covid health crisis and the states’ aggressive response to it were unprecedented. State power to ban religious services under these extraordinary circumstances was far from clear. Consequently, courts struggled to adapt general First Amendment principals developed in cases addressing vastly different situations, and far more limited religious restrictions, to unprecedented times.
Courts Defer to State Power in a Time of Crisis
Numerous courts upheld sweeping restrictions on religious services so long as the restrictions similarly limited secular gatherings such as concerts, theaters, and conventions. These courts accepted state claims that religious and other group gatherings involved sustained, close, personal contact more dangerous than routine commercial activity and therefore deserved significantly more restriction.
In Cassell v. Snyders, 458 F.Supp.3d 981, 996 (N.D. Ill. May 3, 2020), the court stated “[a]n in-person religious gathering is not analogous to picking up groceries, food, or medicine, where people enter a building quickly, do not engage directly with others except at points of sale, and leave once the task is complete”. Similarly, in Calvary Chapel of Bangor v. Mills, 459 F.Supp.3d 273, 286 (D. Maine May 9, 2020), the court reasoned “[t]he purpose of shopping is not to gather with others or engage them in conversation and fellowship, but to purchase necessary items and then leave as soon as possible. By comparison, religious services involve sustained interactions between many people.”
The court in Elim Romanian Pentecostal Church v. Pritzker, 2020 WL 2468194, *4 (N.D. Ill., May 13, 2020), recognized “Plaintiffs also complain that the Order classifies law and accounting firms as essential, with no ten-person limit, suggesting that this somehow shows that the Order targets religion … however, people do not go to those places to gather in groups for hours as a time.” The court in Antietam Battlefield KOA v. Hogan, 461 F.Supp.2d 214, 232 (D. Ma. May 20, 2020), declared, “casual contact in a big box store entails a much smaller risk of contracting Covid-19 than a group congregating near one another for a longer period because under the latter circumstances there is prolonged exhalation of respiratory droplets and increased likelihood of contacting surfaces with the virus”.
Animating some of these decisions is a clear belief both that religious practices do not sustain daily life as immediately as commercial conduct does and that remote services are a reasonable substitute for in-person religious gatherings. Judge Frank Easterbrook, writing for the Seventh Circuit, forcefully rejected plaintiff’s First Amendment challenge to Illinois’ restrictions on mass gatherings:
“Reducing the rate of transmission would not be much use if people starved or could not get medicine. That’s also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet. Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.”
Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 347 (7th Cir. June 16, 2020).
Other Courts Demand Neutral Treatment for Houses of Worship
Other courts have refused to accept that in-person religious congregation is inherently more dangerous or less important than the myriad of commercial activities that states allow under Covid. If social distancing, mask wearing, hygiene requirements, and other precautions are sufficient to allow busy transportation hubs and big box stores to operate, religious organizations should be permitted to operate under those same restraints.
In Roberts v. Neace, 958 F.3d 409, 414 (6th Cir., May 9, 2020), the Sixth Circuit flunked Kentucky’s Covid restrictions:
“[T]he Church and its congregants just want to be treated equally. They don’t seek to insulate themselves from the Commonwealth’s general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They do not ask to share a chalice. The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.”
A court similarly enjoined the City of Louisville’s ban on Easter services. “Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship . . . Louisville has targeted religious worship by prohibiting drive-in services, while not prohibiting a multitude of other non-religious drive-in and drive-throughs – including, for example, drive-through liquor stores.” On Fire Christian Center, Inc. v. Fischer, 435 F.Supp.3d 901 (W.D. KY, April 11, 2020). Another court flunked Kansas’s Covid restrictions:
“[T]he secular facilities that are still exempt from the mass gathering prohibition or that are given more lenient treatment, despite the apparent likelihood they will involve mass gatherings, include airports, childcare locations, hotels, food pantries and shelters, detoxification centers, retail establishments, retail food establishments, public transportation, job centers, office spaces used for essential functions, and the apparently broad category of ‘manufacturing, processing, distribution, and production facilities.”
First Baptist Church v. Kelly, 455 F.Supp.3d 1078, 1089 (D. Kan., April 18, 2020).
A court flunked New York’s law prohibiting restaurants from hosting weddings larger than 50 people but permitting identical restaurant dining in higher capacities. DiMartile v. Cuomo, 2020 WL 4558711, *10 (N.D.N.Y., Aug. 7, 2020) (“Ordinary dining is permitted to involve a number of patrons equal to up to 50 percent of the venue’s maximum capacity, while wedding use is subject to the general 50-person gathering restriction. Based on the evidence provided in this case, the Court can find no rational basis for the State’s difference in treatment between use of the venues in question for ordinary dining and use of those venues for weddings”). And a court flunked North Carolina’s requirement that religious services be conducted outdoors while imposing no similar requirement on secular services. Berean Baptist Church v. Cooper, 460 F.Supp.3d 651 (E.D.N.C. May 16, 2020).
Several appellate judges, moreover, filed dissenting opinions arguing that the state restrictions before them failed to treat religion neutrally. Agudath Israel of America v. Cuomo, 2020 WL 6750495, *5 (2d Cir., Nov. 9, 2020) (Park, J., dissenting) (“the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship”). South Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 946 (9th Cir., May 22, 2020) (Collins, J., dissenting) (“Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person ‘religious services’ – merely because they are ‘religious services’ – are categorically not permitted to take place even if they follow the same guidelines”).
Public Protests Erupt after the Death of George Floyd
The protests that erupted after the death of George Floyd on May 25, 2020 further complicated the First Amendment battle lines. Millions took to the streets in crowded protests and many governors and mayors supported and even joined those protests. Some states, therefore, could no longer claim that their Covid policies impartially distinguished between prohibited close, personal, gatherings and more isolated conduct such as engaging in shopping and business.
Protest vs. Prayer in a Pandemic
New Jersey, for example, was forced to revise its Covid restrictions prohibiting outdoor religious activities after Governor Phil Murphy repeatedly expressed support for Black Lives Matter protestors in early June. Recognizing that his outspoken support for the protests conflicted with his executive orders prohibiting all outdoor religious gatherings, on June 9, 2020, Governor Murphy issued Executive Order 152 exempting outdoor religious and political activity from the state’s Covid restrictions: “where the outdoor gathering is a religious service or political activity, such as a protest, the gathering is not required to comply with the numerical capacity limits of this Order.” New Jersey’s Attorney General then directed prosecutors to dismiss all pending criminal prosecutions relating to outdoor religious gatherings to avoid the significant constitutional issues those prosecutions raised. See Solid Rock Baptist Church v. Murphy, 2020 WL 4882604, *3 (D. N.J., Aug. 20, 2020).
New Mexico faced a similar conundrum. Governor Michelle Grisham made repeated statements supporting BLM protests in her state while simultaneously banning religious congregation. Plaintiffs in the case Legacy Church v. Kunkel therefore renewed their application for relief from New Mexico’s Covid restrictions on the ground that New Mexico impermissibly favored political speech over similarly situated religious conduct. To resolve the constitutional issues raised by the Governor’s conduct, the Court held that New Mexico’s Covid restrictions contained an implicit exemption for all outdoor activity, including both religious and political activity. Legacy Church, Inc. v. Kunkel, 2020 WL 3963764, *86 (D. N.M., July 13, 2020).
New York State and the District of Columbia were in the same boat. A federal court flunked New York’s Covid restrictions in part because Governor Andrew Cuomo and NYC Mayor Bill DeBlasio explicitly encouraged BLM protestors to participate in mass gatherings. “Governor Cuomo and Mayor de Blasio could have just as easily discouraged protest … instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules. They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment.” Soos v. Cuomo, 2020 WL 3488742, *12 (N.D.N.Y. June 26, 2020).
Another court flunked Washington, D.C. Mayor Muriel Bowser’s Covid restrictions due to her support of, and participation in, BLM protests while banning outdoor religious congregation:
“[T]he Mayor appeared at one of the mass gatherings, ‘welcom[ing]’ hundreds if not thousands of protestors tightly packed into Black Lives Matter Plaza and announcing that it was ‘so wonderful to see everybody peacefully protesting, wearing [their] mask[s]’ … the District’s (and in particular, Mayor Bowser’s) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church’s outdoor services.”
Capital Hill Baptist Church v. Bowser, 2020 WL 5995126, *8 (D. D.C. Oct. 9, 2020).
Similarly, in Spell v. Edwards, 962 F.3d 175, 182 (5th Cir. June 18, 2020), appellate Judge James C. Ho issued a concurring opinion observing that Louisiana Governor John Edward’s COVID restrictions appeared unconstitutional in light of the Governor’s vocal support for protestors congregating in violation of the restrictions:
“It is common knowledge, and easily proved, that protestors do not comply with social distancing requirements. But instead of enforcing the Governor’s orders, officials are encouraging the protests—out of an admirable, if belated, respect for First Amendment rights. The Governor himself commended citizens for ‘appropriately expressing their concerns and exercising their First Amendment Rights.’ And he predicted that ‘we will continue to see peaceful, nonviolent demonstrations and protests where people properly exercise their First Amendment rights.’ If protests are exempt from social distancing requirements, then worship must be too.”
A Divided Supreme Court
The Supreme Court addressed Covid restrictions three times in 2020. In the first two cases, the Court denied plaintiffs’ applications to enjoin state Covid restrictions pending appeal. In both cases, the Court did not issue a majority opinion explaining its decision but Justices Alito, Gorsuch, Kavanaugh and Thomas issued dissenting opinions expressing similar constitutional concerns as expressed by lower courts in other cases.
In the first case, the four dissenting Justices were troubled that California limited occupancy at religious services but did not similarly limit occupancy at a host of commercial activities:
“The basic constitutional problem [with California’s Covid restriction] is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.”
South bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614 (U.S., May 29, 2020) (Kavanaugh, J., dissenting).
In the second case, the four dissenting Justices were similarly critical of Nevada’s apparent favoritism for gambling and protesting over religious services.
“A [Nevada casino] may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers in close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers – no matter how large the building, how distant the individuals, how many wear masks, no matter the precautions at all.”
Calvary Chapel Dayton Valley v. Sisolek, 140 S.Ct. 2603, 2609 (U.S., July 24, 2020) (Gorsuch, J., dissenting).
“The [Nevada] Governor not only declined to enforce the directive [limiting mass gatherings] but publicly supported and participated in a protest. He even shared a video of protesters standing shoulder to shoulder. The State’s response to news that churches might violate the directive was quite different. The attorney general of Nevada is reported to have said, ‘You can’t spit … in the face of law and not expect law to respond.’”
Id. at 2607 (Alito, J., dissenting).
Justice Barrett Replaced Justice Ginsburg
Shortly after these two cases, Justice Ruth Bader Ginsburg died on September 18, 2020 and was replaced by Justice Amy Coney Barrett on October 26, 2020. Justice Ginsburg had joined the majority in both cases and her replacement by a more conservative Justice Barrett likely tipped the Court’s balance on these issues.
On November 25, 2020, the Supreme Court issued its decision in the third Covid case to reach the Court. In an unsigned “per curium” decision in Roman Catholic Diocese v. Cuomo, 592 U.S. ___ (2020), the Court enjoined New York from enforcing certain Covid restrictions against the plaintiff houses of worship pending resolution of their appeals. While not finally ruling upon the constitutionality of New York’s restrictions, the Court was extremely critical of New York’s restrictions as applied to the plaintiffs.
The Court was troubled that the State strictly limited even large houses of worship to 10 or 25 parishioners while permitting a host of retail and commercial establishments to operate with no similar limits. The Court also noted public statements indicating that New York had specifically targeted certain religious groups. Further, the Court noted that the record showed that plaintiffs had diligently observed prevailing hygiene, social distancing and other requirements imposed by the State, and had previously operated at much higher capacities without any adverse results.
Importantly, the Court reasoned that New York could have imposed less restrictive measures to achieve its goal, most obviously by tying maximum capacity limits to the physical size of religious facilities instead of adopting strict numerical limits. “It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400 seat synagogue would create a more serious health risk than the many other activities that the State allows.” While limited in its holding, the Court’s decision is a significant blow to New York’s Covid restrictions, especially because two other federal courts (discussed infra) had previously flunked the State’s Covid restrictions on First Amendment grounds.
The Covid pandemic and state responses to it created unprecedented First Amendment challenges. Many courts deferred to states’ use of their police power to fight the plague, including by prohibiting virtually all religious services. But that judicial tolerance had its limits. More conservative judges objected that states cannot relegate religious congregation to a secondary status behind shopping at Menard’s, visiting liquor stores, or engaging in crowded street protests. Moreover, as our understanding of Covid spread improved, Courts increasingly questioned why religious services should be subjected to stricter measures the measures that suffice for bustling commercial activities. Finally, the changed composition of the Supreme Court may tip the balance toward toward more scrutiny of Covid restrictions than existed only several months ago. So, hopefully, Covid and the restrictions relating to it will end soon, but if they do not, the First Amendment will be a hot litigation topic in 2021.
 See Legacy Church, Inc. v. Kunkel, 455 F.Supp.3d 1100, 1152 (D. N.M. April 17, 2020); 456 F.Supp.3d 783, 785 (N.D. Miss. April 24, 2020). Cross Culture Christian Center v. Newsome, 445 F.Supp.3d 758, 770 (E.D. Cal. May 5, 2020) (“In person church services, on the other hand, are by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose”)