The Supreme Court Got Church Restrictions Right

National Review Online

Sunday, November 29, 2020

 

Andrew Cuomo thinks he can limit the capacity of churches and synagogues to ten people in areas besieged by COVID-19 — while other, more “essential” activities face no limit at all. The Supreme Court quite rightly disagrees.

 

Legally, the Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo only pauses the enforcement of these rules against the litigants who’ve challenged them — including the eponymous diocese and Agudath Israel of America — while the case proceeds. But a majority of the Court thinks the restrictions cross the line.

 

Under longstanding precedent, states typically may enact religiously neutral, generally applicable laws without running afoul of the First Amendment, even if those laws sometimes burden religious practices. But if a law that burdens religion is not generally applicable, it must satisfy “strict scrutiny”: It must be narrowly tailored to promote a compelling government interest using the least restrictive means available. Cuomo’s restrictions in areas classified as “orange” or “red” (in terms of COVID-19 prevalence) are neither generally applicable nor narrowly tailored.

 

Within these areas, different types of establishments are treated differently, with houses of worship facing some of the strictest rules. Religious services are limited to ten people in red areas, for example, while many nearby businesses, including acupuncture clinics and liquor stores, are deemed “essential” and may admit as many customers as they want.

 

This policy was clearly not tailored to minimize damage to religious observance. It doesn’t even allow higher attendance in bigger buildings. As the Court noted, some churches in New York can seat more than 1,000 people while others accommodate far fewer, yet none could host more than 25 people in orange areas and ten people in red.

 

The Court’s ruling is neither surprising nor alarming. Cuomo’s rules discriminate against religious services and thereby run afoul of the Constitution. And to fix the problem, Cuomo would not need to exempt houses of worship from the law everyone else follows, but merely ensure that churches aren’t relegated to second-class status. One approach may be to classify churches as essential and to assign all essential activities a capacity limit that takes establishment size into account. Another would be to simply let the hard capacity limits go, since houses of worship in orange and red areas are still required to keep to a low proportion of their total capacity (a third and a quarter respectively) — and because the areas at issue in the lawsuit aren’t classified as orange or red anymore anyway.

 

Going forward, the question is how the Court should treat less egregious restrictions, as the Court’s opinion is rather vague as to where the line is. In a concurrence, Justice Brett Kavanaugh writes that whenever a policy creates a preferred, less regulated category — “essential” businesses, in this case — states must either include religion in that category or carry the burden of justifying churches’ exclusion. This strikes us as fair, though it goes somewhat beyond existing precedent.

 

Perhaps the thorniest issue here, though, is exactly what it should take to justify different sets of restrictions in different circumstances. As two dissenting justices point out, religious services often involve people congregating in groups for protracted periods and singing; this creates different risks from, say, running into a store to pick up a bottle of wine. It is absurd to nearly shutter religious activities, even those following strict rules to prevent COVID-19 spread, while liquor stores face no capacity limit at all. But in future cases the Court will have to draw its lines carefully to avoid micromanaging the states’ COVID responses.

 

In the current decision, however, all the Court does is reiterate the law. Americans have a right to worship as they see fit, and the government may encroach on that right only in limited circumstances, which don’t include targeting churches for unjustifiably poor treatment the way Cuomo’s rules do.