Churches Appeal to SCOTUS for Religious-Liberty Protections, Amid Increasingly Strict COVID Restrictions
A pair of recent instructions from the U.S. Supreme Court have signaled support for the pushback by Catholic bishops and other faith groups against measures they insist are unfair and unnecessary.
WASHINGTON — In this season of Advent, churches around the country are grappling with state and local governments that have issued COVID-19 restrictions severely limiting attendance, despite large seating capacity and less restrictions on many secular businesses.
“A lot of us are running out, some already have run out, of patience,” Archbishop Salvatore Cordileone of San Francisco told the Register Dec. 4 about such restrictions.
One day earlier, the U.S Supreme Court vacated the 9th Circuit Court’s ruling against California churches that had sued over restrictions that banned indoor worship in areas with severe spread of the coronavirus. That Dec. 3 ruling ensued directly from the top court’s earlier 5-4 decision Nov. 25 in Roman Catholic Diocese of Brooklyn v. Cuomo, which delivered a strong affirmation of the First Amendment right to worship for many religious leaders like Archbishop Cordileone across the country who have protested and/or initiated legal action against increasingly severe restrictions prompted by the COVID-19 second wave.
San Francisco’s Catholic shepherd is among the many religious leaders in California now waiting for the district court to reexamine Gov. Gavin Newsom’s restrictions that, currently, have banned indoor worship altogether in much of the state, while allowing retail operations to continue at 25% capacity. He expressed hope that the Supreme Court sending the California case back to the lower courts, in light of their decision in New York, will lead the district court to do away with the similar restrictions there.
On Dec. 8, the 9th Circuit Court took another step toward that objective by vacating a lower court’s ruling against South Bay United Pentecostal Church in Chula Vista, which had filed a legal challenge against the state’s complete ban on religious services in certain geographic areas. The lower court must now reconsider its decision against the church.
“It’s deeply offensive, it’s outrageous, and it’s unconstitutional to say worship is nonessential,” Archbishop Cordileone told the Register. “The government has no authority to tell the Church if it’s essential or not, or which of its services are essential or not. That’s the Free-Exercise Clause of the Constitution.”
But while the archbishop noted that places of worship have a constitutional claim for special consideration above comparable secular activities, he said that churches in the Golden State would be content if they merely received “equal treatment” to secular businesses that are permitted to operate at larger capacities.
The archbishop also cited another “double standard,” pointing out that in the summer a “hundred or more people” were at protests with “officials participating,” while these same officials suppress “religion because they just see us as nonessential.”
Impact of Brooklyn Diocese Case
The Supreme Court recognized, in their unsigned Nov. 25 opinion in favor of the Diocese of Brooklyn and the Agudath Israel of America synagogues against New York Gov. Andrew Cuomo’s order restricting worship in certain areas to no more than 10 people, that “even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
“In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as ‘essential’ may admit as many people as they wish,” the decision noted. “And the list of ‘essential’ businesses includes things such as acupuncture facilities, camp grounds, garages.”
The court also found that “not only is there no evidence that the applicants have contributed to the spread of COVID-19, but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue.” They acknowledged that “remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive [C]ommunion.”
Recently-confirmed Justice Amy Coney Barrett joined with Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh and Neil Gorsuch in the majority ruling.
Joe Davis, counsel at Becket Law, a religious liberty law firm that represented Agudath Israel protesting Cuomo’s COVID restrictions, told the Register that the court’s decision in the case “is going to have a very powerful impact” on future religious-liberty complaints against COVID restrictions.
“There was a sense that governments could get away with a lot of discriminatory restrictions on houses of worship and the courts, at least in the beginning of the pandemic, weren’t intervening much,” Davis said, “so this is a really important decision in terms of the court laying down a marker that the First Amendment and freedom of worship doesn’t yield even during a pandemic.”
Davis said that while “Gov. Cuomo’s 10- and 25-person caps were extremely severe relative to the rest of the country,” he was “not alone, and especially as we’re entering the fall and winter, there have been other states that have rattled their sabers about locking down, including locking down religious worship.”
He said that “governments and jurisdictions should be on notice now that discriminatory restrictions that prohibit people from worshipping in person, even as they allow them to do all kinds of other aspects of ordinary life in person, are going to be subject to the Constitution, and the courts will intervene. I think people of faith should take encouragement from that decision.”
Pending Requests to SCOTUS
In light of the court’s ruling in the Brooklyn Diocese case, the justices have received additional requests for relief from COVID restrictions that have the potential to carve out the extent to which religious institutions are exempted from unjustified COVID restrictions.
One request in New Jersey came from Society of St. Pius X priest Kevin Robinson in North Caldwell and Rabbi Yisrael Knopfler of Lakewood against Democratic Gov. Phil Murphy’s regulation limiting capacity to 25%, or no more than 150 people, in houses of worship. Their application contended that their houses of worship “are still being treated unequally relative to numerous comparable secular activities, including attending school, working at a meat-packing plant, getting a facial, shopping at Costco, playing contact sports, casino gambling and mass celebrations after a presidential election.”
It also challenged the governor’s mask mandate, pointing out that “the Applicants and their congregations must wear face masks during services, which they may only ‘briefly’ or ‘momentarily’ remove to receive [C]ommunion, or (when outdoors) for other ‘religious reasons.’ Yet numerous open-ended exemptions from mask-wearing are afforded for secular reasons, such as health, practicability, exercise, office work, and more, with no temporal limitation to a brief moment.”
Another request before the court is from Danville Christian Academy in Kentucky, protesting Democratic Gov. Andy Beshear’s Nov. 18 order closing all “public and private elementary, middle, and high schools.” Kentucky’s Republican Attorney General Daniel Cameron has sided with the school in the dispute.
The plaintiffs argue that Beshear “allows virtually all other in-person activities and outdoor gatherings in Kentucky to continue subject to certain restrictions. Daycares, preschools, colleges, and universities are open.” Danville Christian has a “sincerely held belief that it is called by God to provide in-person instruction to its students,” their legal belief stated, and also argued that the school, which is taking a series of precautions against COVID, is safer than permitted secular gatherings, which “create a risk of significant outbreaks.”
The High Plains Harvest Church in Colorado is petitioning the Supreme Court for an injunction against Democratic Gov. Jared Polis’ 50-person limit on houses of worship.
“The linchpin of the State’s attempted justification for discriminating against churches in favor of secular uses is that somehow churches are uniquely risky environments for spread of COVID-19,” stated the church’s petition. “But the data are profoundly at odds with the State’s position.” Gorsuch asked for a response from Colorado officials by Dec. 9.
Responding to Gorsuch’s request on that date, Polis asked the Supreme Court to drop the church’s lawsuit because he had lifted the state’s COVID-19 restrictions by reclassifying houses of worship as “critical businesses,” thereby exempting them from the capacity limits that apply to nonessential activities.
Catholic Medical Perspective
Dr. Thomas McGovern, a private practice dermatologist in Fort Wayne, Indiana, was formerly a clinical infectious disease researcher at the U.S. Army Medical Research Institute of Infectious Diseases and now serves on the Thomistic Institute Working Group on Infectious Disease Protocols for Sacraments & Pastoral Care. He spoke with the Register about the risk of infection from attending Mass and basic safety precautions.
McGovern advised he didn’t “see any reason” to restrict Mass “more than any other activity where people are getting together. … We’ve typically got large-volume buildings where we can space people out by household groups.”
McGovern, a co-host of Doctor, Doctor on the EWTN Catholic Radio Network, noted that the model from the Thomistic Institute that has been implemented in parishes across the country has proven highly effective. Those guidelines call for distancing, mask-wearing, no singing, and frequent handwashing. A study of 1 million Masses taking place over a 14-week period following these protocols found no COVID-19 outbreaks.
He said that evidence indicates that “singing puts two to four times more aerosolized particles” into the air, and “mask-wearing reduces spread in an area of disease about 85%,” while “sanitizing reduces risk by a little over 50%, and then the spacing was a similar 67% reduction. So if you combine all those things, you get a significant reduction in risk.”
McGovern added that “there’s no evidence of COVID being spread through food” and consequently expressed frustration with Dr. Anthony Fauci, the National Institute of Allergy and Infectious Diseases’ director, telling America magazine that it would be dangerous to receive Communion.
McGovern’s advice to the faithful was that “if you’re going to go to Mass, by all means go, but wear the mask, cover your nose and your mouth, follow the distancing so that we don’t overwhelm our hospitals.”
Bishops Push Back
In addition to the requests pending before the Supreme Court, bishops in many dioceses have spoken out about seemingly excessive limits on attendance despite parishes that have been diligent about wearing masks, social distancing and sanitizing.
In Oregon, Archbishop Alexander Sample of Portland expressed “great disappointment and frustration” over Democratic Gov. Kate Brown’s November rule limiting attendance at churches to 25 people. In the wake of his criticism, Brown revised it upward just before Thanksgiving to 25% capacity, or a maximum of 100 people indoors.
“I am pleased and grateful that our ongoing discussion with the governor’s office has resulted in a more reasonable percent to capacity policy for the Catholic Church and other faith communities,” the archbishop said Nov. 29. “However, the Eucharist is as essential to the Catholic faith life as going to the grocery store, and I will continue to advocate for the faithful.”
In Kentucky, Archbishop Joseph Kurtz of Louisville and his fellow bishops in the state have declined to conform with a request from Gov. Beshear to stop holding in-person religious services. “At this time, we will not be suspending public liturgies but encourage all to act in a responsible way that respects the seriousness of this pandemic and the health and safety of all,” the archbishop said in a Nov. 19 statement. He said “the increase in cases of COVID-19 is indeed alarming and presents significant challenges” and “reiterated the importance” of following health-and-safety guidelines.
In a Dec. 8 Wall Street Journal commentary titled “No More Bishop Nice Guy,” Matthew Hennessy — a Catholic father of five who is a parishioner at a church in New York City — advocated for stronger pushback by other Catholic leaders against unfair restrictions, in light of the spiritual harm that is being inflicted on the faithful.
“There is no evidence that the virus is spreading in the churches, so my message to these bishops is this: Show some backbone,” Hennessy wrote.
Archbishop Cordileone, who has been one of the most vocal U.S. bishops in publicly challenging local restrictions on Catholic worship, told the Register that in San Francisco Catholics will continue implementing the safety protocols from the Thomistic Institute along with many other dioceses, because they’re “committed to public health and being responsible.”
But states are still “being unconstitutional and closing up public worship while they’re allowing other businesses to operate,” he added. With the final outcome of legal petitions still pending, he advised the faithful this Advent to “access the Mass as they can, access the other sacraments,” and “keep the faith alive in their homes.”