COVID-19, Churches, and Culture Wars

Exploring the legal and cultural dimensions of the Supreme Court's pandemic free exercise decisions

Image: COVID-19 in Washington DC by dmbosstone

This week, I’m departing from my usual newsletter format to highlight a short academic article of mine just out in the University of St. Thomas Law Journal. (The article is dated April 2022 but just became available in print and online.)

“COVID-19, Churches, and Culture Wars” was part of a symposium on legal issues related to the pandemic. I’m highlighting it now because of its thematic ties to last week’s post on COVID mask mandates and in light of yesterday’s decision by the CDC to end restrictive measures like quarantines and social distancing.

Today’s post also provides an opportunity to share some of my academic work. In my day job as a law professor, I focus on a few things deeply. But as my wife and kids like to remind me, my academic writing rarely appeals to non-specialists. In a culture increasingly distrustful of expertise, it can be helpful to summarize and translate specialized knowledge.

The rest of this post quotes extensively from my article with the goal of sharing a condensed version of its substance. For readability, I will dispense with the usual practice of highlighting these quotes. You are welcome to read the full article here. I also invite your questions, and I’ll do my best to answer them in the comments or in a future post.

Overview

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety.

The shutdown and social distancing orders not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to stop the spread of a deadly virus, a public health interest of the highest order. These already high constitutional stakes were further heightened by a rapidly changing pandemic, a heated presidential election, and Justice Amy Coney Barrett’s Supreme Court appointment, all of which fueled the fire of the culture wars.

The Cases

From May 2020 until April 2021, the Supreme Court responded to five significant requests for emergency injunctive relief involving worship:

• South Bay United Pentecostal Church v. Newsom (May 2020)

• Calvary Chapel Dayton Valley v. Sisolak (July 2020)

• Roman Catholic Diocese of Brooklyn v. Cuomo (November 2020)

• South Bay United Pentecostal Church v. Newsom II (February 2021)

• Tandon v. Newsom (April 2021)

The Court upheld the restrictions in the first two cases and blocked them in the last three cases.

In deciding these cases as emergency appeals, the Court expedited its review and rendered its decisions more hastily and without the benefit of full briefing from the parties. There are defensible reasons for taking these expedited reviews, but their streamlined nature meant less time for dialogue and reflection among the Justices. (This expedited context also raises a number of additional legal issues that I explore in my article but will not address here.)

The specific facts and local conditions of these cases matter. Given the fast-moving nature of the pandemic and the lack of coordinated federal guidance, cases arose from varying state and local ordinances addressing different pandemic conditions. That means there is no way to generalize the policy wisdom or constitutionality of a particular ordinance. For example, what was constitutionally defensible in California at a certain stage of the pandemic may or may not have been defensible months later in New York. And today, odds are that if any jurisdiction sought to enforce these orders, courts would strike them down. Pandemic conditions matter to the constitutional analysis.

Cultural Context

The Supreme Court’s early decisions generated a fair amount of commentary, but the real firestorm came in response to its November 2020 decision in Diocese v. Cuomo. The Court struck down a New York restriction that in some cases limited in person gatherings to the lesser of ten people or 25 percent of maximum building capacity. New York’s restriction applied to houses of worship but exempted a long list of “essential” businesses. Justice Gorsuch seized upon these exemptions in a snarky concurrence:

[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?

To some on the right, Diocese. v. Cuomo represented a massive victory for religious liberty:

John MacArthur @johnmacarthur

It's divine providence at work as the Lord uses the death of Ruth Bader Ginsberg, the hubris of @NYGovCuomo , the determination of @realDonaldTrump , and the convictions of Justice Barrett to protect the freedom of His church.

foxnews.comSupreme Court rules against Cuomo’s coronavirus limits -- with Barrett playing key roleThe U.S. Supreme Court on Wednesday night blocked New York Gov. Andrew Cuomo from reimposing strict attendance caps at worship services in areas hit hard by the novel coronavirus.

Certain reactions on the left were similarly grandiose. Writing in USA Today, law professors Laurence Tribe and Michael Dorf fretted that Diocese v. Cuomo foreshadowed “the theocratic and misogynist country in Margaret Atwood’s dystopian ‘The Handmaid’s Tale.’”

Diocese v. Cuomo hardly justifies these reactions. Reasonable minds can differ about the Court’s conclusions, and it’s possible that the Court will rely on aspects of its decision in future cases (there were hints of this in Tandon v. Newsom). But the ruling itself was not a sweeping constitutional decision, and it will likely have little direct influence on constitutional doctrine.

Seen through a cultural rather than a constitutional lens, Diocese v. Cuomo signaled a great deal more:

• Justice Amy Coney Barrett cast her first outcome-determinative vote on the Court, in a decision about religious freedom, in the middle of the pandemic.

• Justice Neil Gorsuch’s needlessly inflammatory concurrence raised the temperature of the decision.

• The case connected symbolically to the culture wars: the particular mix of law, science, and policy infusing legal challenges to COVID-related restrictions; the fear by some religious conservatives that the government is out to get them and using public health restrictions as a cover to trample their religious freedom; and the anxiety of some progressives that Justice Barrett and her conservative colleagues will use religious freedom to entrench a kind of social conservatism.

The cultural framing of Diocese v. Cuomo makes it even more important to understand a bit about the constitutional framework within which the Court reached its conclusion.

Free Exercise Complications

Under current free exercise law, courts first assess whether a regulation is “neutral” and “generally applicable” (both legal terms of art). If the regulation lacks either neutrality or general applicability, it must be narrowly-tailored to further a compelling government interest.

The distinct inquiries into general applicability and compelling interest usually cut in the same direction. For example, in a 1993 free exercise case challenging a restriction on animal sacrifice in religious worship, numerous exemptions for non-religious animal killings indicated a lack of general applicability. But those exemptions also undercut the government’s claim to a compelling interest: if limiting animal killing was really such an important interest to justify restrictions on the free exercise of religion, then why were so many non-religious animal killings permitted?

This convergence of general applicability and compelling interest holds across most free exercise contexts. The COVID-19 shutdown orders provide a rare example of a lack of general applicability in some ways strengthening the government’s claim to a compelling interest in restricting religious exercise. This is because social distancing to prevent the spread of COVID-19 presents a collective-action problem: it only works if most people decide to follow along, even if their own individual preferences would have them do otherwise. But all shutdown orders include necessary exemptions for hospitals and certain essential government services, some of which will require large groups of people to congregate. These exceptions increase the risk of spread, which strengthens the compelling nature of the government’s interest in everybody else’s compliance.

If COVID-19 shutdown orders only exempted hospitals and essential government services, then under certain pandemic conditions, restrictions affecting houses of worship would likely be upheld even though such restrictions would not be generally applicable. But as noted above, New York and other jurisdictions also exempted a dizzying array of other services (including, in some cases, casinos, liquor stores, and bicycle repair shops) that made the orders even less generally applicable.

Free exercise law also requires government restrictions to be narrowly tailored. For example, if the best scientific evidence suggested that fifty masked and socially distanced congregants could meet for indoor worship, then a restriction limiting services to ten masked and socially distanced congregants, or a restriction shutting down in-person worship entirely, would arguably lack narrow tailoring. On the other hand, if the best scientific evidence suggested that no amount of in-person worship could be safely conducted, then shutting down worship services entirely would be narrowly tailored.

Finally, some commentary around these cases suggested that prohibiting in-person worship would not substantially burden religion because virtual worship services are fully adequate substitutes. From a constitutional perspective, if a claimant believes that virtual worship imposes a substantial burden on religion, then courts are usually not able to second-guess the soundness or sincerity of that theological claim.

Takeaways

The ultimate question in these cases is whether the substantial burdening of a fundamentally important religious activity can be justified by the government’s interests in limiting a pandemic. The legal analysis inevitably comes down to a fact-specific weighing of values, or what courts usually refer to as a balancing of interests. This weighing and balancing requires judgments from judges and policy makers. At best, these judgments follow a kind of reasoning and restraint that is bounded by the practice of legal interpretation; at worst, they become politically motivated decisions.

Cases like the Court’s COVID-19 decisions will always be hard, and many people will focus on outcomes more than the reasoning underlying those outcomes. But careful legal analysis and attention to the underlying facts at least provide the contours for a debate and requires both sides to make arguments within those contours. Going forward, that might be a small step toward quieting the culture wars.