Draft:COVID-19 religion cases in the U.S. Supreme Court

During the COVID-19 pandemic, the Supreme Court of the United States considered a series of emergency requests to allow in-person gatherings for religious purposes under the Free Exercise Clause despite restrictions on gathering imposed by state governments. Initially, a narrow majority denied these requests, starting with South Bay United Pentecostal Church v. Newsom I in May 2020, but after the appointment of Amy Coney Barrett to the court, a majority began granting requested injunctions, starting with Roman Catholic Diocese of Brooklyn v. Cuomo in November 2020.

Under the prevailing framework for religious-liberty challenges since the 1990 decision Employment Division v. Smith, laws burdening religious exercise did not need to provide exemptions so long as they were neutral and generally applicable. However, in the COVID cases, the court narrowed Smith, and, most explicitly in the Tandon v. Newsom decision in February 2021, adopted a novel "most favored nation" approach, under which religious exemptions must be granted if any comparable secular activity receives an exemption, unless there is a compelling reason to deny the exemption.

Background
Over the course of the pandemic, the Supreme Court decided five main free-exercise challenges to restrictions on public gatherings:
 * 1) South Bay United Pentecostal Church v. Newsom I
 * 2) Calvary Chapel Dayton Valley v. Sisolak
 * 3) Roman Catholic Diocese of Brooklyn v. Cuomo
 * 4) South Bay United Pentecostal Church v. Newsom II
 * 5) Tandon v. Newsom

These cases touched upon main two issues: how much leeway does the government have to restrict civil liberties during a pandemic, and when must government grant religious exemptions to a law.

Public health measures in a pandemic
At the beginning of the COVID-19 pandemic, the Supreme Court had last addressed the government power during a pandemic in Jacobson v. Massachusetts (1905). Jacobson was most often understood taken to mean that the government has broad leeway to restrain individual rights during a pandemic for public safety. However, Jacobson predated tiered scrutiny, under which an infringement of a fundamental right is subject to strict scrutiny, whereas more commonplace restrictions on individual liberty receive only rational basis review, leaving disagreement about whether Jacobson reflected current law.

Free exercise of religion
Before the COVID-19 cases, the primary framework of free-exercise doctrine was set out by a pair of decisions in the 1990s: Employment Division v. Smith (1990) and Church of Lukumi Babalu Aye v. City of Hialeah (1993). Until Smith, the denial of a religious exemption had been subject to strict scrutiny whenever a law substantially burdened free exercise of religion. Smith made it much harder to seek a religious exemption in federal court by holding that no exemption is required so long as a law is "neutral" and "generally applicable". Lukumi exemplified the flipside – a law which was not neutral toward religion, and therefore was still subject to strict scrutiny. In that case, the court unanimously held that an city ordinance banning animal sacrifice unconstitutionally discriminated against religion because the city made exceptions for many secular purposes, such as killing animals for consumption (food and clothing), sport (hunting and fishing), and euthanasia.

Two strands of pushback to Smith have taken place since the decision. First, critics of Smith have tried to overturn the decision and restore to the earlier strict-scrutiny regime. Congress codified the pre-Smith standard with the bipartisan Religious Freedom Restoration Act of 1993, which passed in the Senate by a vote of 97–3. However, the Supreme Court partially struck the law down in City of Boerne v. Flores (1997), holding that Congress could not require state and local governments to give religious exemptions under the pre-Smith strict-scrutiny approach.

Second, some have interpreted Smith narrowly by taking even a single secular exemption as making a law not "generally applicable" such that the denial of a religious exemption would be discriminatory. One prominent example was Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark (3d Cir. 1999), a decision written by Samuel Alito before he joined the Supreme Court, which held that two Muslim police officers could not be required to shave their beards as part of an officer uniform policy because there was an exception for medical reasons (namely, for pseudofolliculitis barbae). This view, known as the "most favored nation" approach, was ultimately adopted by a majority of the court in the COVID cases, most explicitly in Tandon v. Newsom (2021).

South Bay I
South Bay United Pentecostal Church v. Newsom, 590 U.S. ___ (2020), commonly called South Bay I, was the first decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic. The case was a challenge to California's restrictions that, as of May 2020, limited indoor religious gatherings to the lesser of 100 people or 25% of a building's capacity. This was challenged by a church with a capacity of 600 people that usually had 200–300 in attendance. The district court refused to issue a temporary restraining order and the a panel of the Ninth Circuit Court of Appeals likewise declined to enjoin the provision by a vote of 2–1.

It is customary for the Court not to issue a majority opinion in its non-merits decisions (also called the "shadow docket"), including decisions as to injunctions. However, this can lead to a lack of clarity as to why the Court is deciding a certain way, which may be particularly problematic in prominent cases. Accordingly, some members of the majority sometimes write a separate concurrence to state the reasons for their decision, which may or may not be the same reasons why other members of the majority decided as they did.

Concurrence
Chief Justice Roberts wrote a separate concurrence explaining his vote. Citing Jacobson, he emphasized the importance of deference to public health officials during a pandemic:

"The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts '[t]he safety and the health of the people' to the politically accountable officials of the States 'to guard and protect.' Jacobson v. Massachusetts, . When those officials 'undertake[] to act in areas fraught with medical and scientific uncertainties,' their latitude 'must be especially broad.' Marshall v. United States,."



He noted that there was no known cure or vaccine and that people could be infected yet asymptomatic and unwittingly infect others. Procedurally, he also said that it would be appropriate for the Supreme Court to issue an injunction only if the basis for relief were "indisputably clear".

Roberts's concurring opinion was extremely influential in the months after South Bay I was issued, until the Court shifted its approach in Roman Catholic Diocese of Brooklyn. Roberts was the apparent decisive vote for upholding the restrictions at issue and was the only member of the majority to issue an opinion in the case.

Dissent
Justice Kavanaugh wrote a short opinion for three of the four dissenters in South Bay I, whereas Justice Alito noted his dissent without an opinion (as is more common for dissents from emergency orders).

Justice Kavanaugh argued that California's pandemic restrictions explicitly considered religious status (rather than being neutral with respect to religion) and that religious activities were treated worse than comparable secular activities. Accordingly, he applied strict scrutiny and concluded that Governor Newsom had not shown a compelling justification for distinguishing religious activities from certain secular activities.

Calvary Chapel Dayton Valley v. Sisolak
Calvary Chapel Dayton Valley v. Sisolak, 519 U.S. ___ (2020), a challenge to Nevada's restrictions on indoor gatherings, which exempted casinos but not churches, was the second decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic. Church services were subject to a limit of 50 persons, whereas businesses like casinos, bowling alleys, restaurants, gyms, and pools could open at the more lax limit of 50% capacity. The lower courts declined to block the restriction, at which point Calvary Chapel requested an injunction from the U.S. Supreme Court. Again by a 5–4 vote, the Supreme Court denied the request.

Dissents
Justice Alito wrote a dissenting opinion, joined by Thomas and Kavanaugh, saying that the Nevada order "blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause" based on a comparison of the restrictions on churches with those on comparable secular activities.

Justice Gorsuch wrote a short, one-paragraph dissent, calling it a "simple case" and saying that "there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel".

Justice Kavanaugh wrote an influential dissent in Calvary Chapel that argued that, when any secular activities receive exemptions, religious activities must generally get those same exemptions, unless sufficient justification can be given for withholding it. This approach, which was later adopted by a majority of the court in Tandon, has been called the "most favored nation" approach, a phrase that Kavanaugh quoted in a parenthetical in his dissent.

Roman Catholic Diocese of Brooklyn v. Cuomo


Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020), was the third major decision of the U.S. Supreme Court on religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic and the first after the appointment of Amy Coney Barrett to the court. Barrett voted to grant the injunction requested by the the Diocese of Brooklyn and Agudath Israel of America, her first publicly known vote after joining the court. With her vote, the previous four dissenters became a majority, and the Court decided by a 5–4 vote to grant an injunction against some of New York's COVID-19 restrictions as applied to places of worship.

The challenged restrictions divided New York into zones based on infection rates. The two most restricted zones (red and orange) had limits on places of worship of 10 people or 25 people, respectively. Businesses categorized as "essential" could open without limit. The Diocese and Agudah challenged these two limits as applied to their religious worship.

The majority issued an unsigned per curiam opinion explaining the reasons for its injunction. The per curiam concluded that the challengers had a high likelihood of success because the restrictions had not satisfied "the minimum requirement of neutrality" as to religion. It noted that the definition of "essential" businesses included things like "acupuncture facilities, camp grounds, garages, [...] all plants manufacturing chemicals and microelectronics and all transportation facilities" and that in orange zones even non-essential businesses could choose how many people to allow. Accordingly, the court applied strict scrutiny rather than rational basis review. While acknowledging that preventing the spread of COVID-19 was a compelling government interest, the court concluded that the restrictions were not narrowly tailored to advance that interest: "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."

Subsequently, the Supreme Court issued grant, vacate, remand orders in Harvest Rock Church, Inc. v. Newsom, High Plains Harvest Church v. Polis, and Robinson v. Murphy for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo.

Concurrences
Justice Gorsuch wrote a concurring opinion. Concluding that Governor Cuomo's order discriminated against religion, he harshly criticized some of the categories of businesses that were exempted as "essential", such as "hardware stores, acupuncturists, and liquor stores", while places of worship were not exempt:

"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?"

He also said that Jacobson did not require a more deferential standard of judicial review during an emergency but rather applied normal standards. Jacobson "essentially applied rational basis review", Gorsuch said, which "is the test this Court normally applies to Fourteenth Amendment challenges [that] do not involve suspect classifications [...] or a claim of fundamental rights". Jacobson involved a claim of a "right to bodily integrity" not explicitly stated in the Constitution, which Gorsuch contrasted with "the textually explicit right to religious exercise". He also contrasted the small fine in Jacobson from "ban[ning] all traditional worship in affected 'zones'".

Justice Kavanaugh also wrote a concurring opinion, which noted that an emergency like the COVID-19 pandemic requires federal courts to give "substantial deference to state and local authorities" but that this "does not mean wholesale judicial abdication".

Dissents
Chief Justice Roberts wrote a dissenting opinion saying that the injunction should be denied because the challenged restrictions had been lifted by Governor Cuomo. He reiterated his view that Jacobson calls for significant deference to "determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic."

Justice Breyer wrote a dissenting opinion, joined by Sotomayor and Kagan, which said that "courts must grant elected officials broad discretion when they undertake to act in areas fraught with medical and scientific uncertainties."

South Bay II
South Bay United Pentecostal Church v. Newsom, 592 U.S. ___ (2021), commonly called South Bay II, was the fourth major decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic.

The court blocked prohibitions on indoor worship but allowed attendance to be restricted to 25% of a building's capacity and allowed singing to be prohibited, provided that those restrictions were enforced neutrally with respect to religion.

Unlike the other four main COVID-19 religious assembly cases, South Bay II was not decided by a 5–4 vote. The three most conservative justices voted to grant the injunction in full, the three most liberal justices voted to deny it in full, and the middle three conservative justices voted to block complete prohibitions on indoor religious gatherings while allowing attendance to be limited to 25% of capacity and allowing singing to be prohibited.

Concurrences
Chief Justice Roberts wrote a concurring opinion. Unlike in South Bay I, Calvary Chapel, Cuomo, and later Tandon, Roberts joined the other conservative justices in blocking some restrictions. He reiterated his view from South Bay I that these COVID restrictions should be given "significant derence", but rejected total bans on indoor worship:

"The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework. At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake."

Justice Barrett wrote a concurring opinion – her first written opinion since joining the Supreme Court – which was joined by Kavanaugh.

Dissent
Justice Kagan wrote a dissenting opinion, joined by Breyer and Sotomayor.

"[California]'s policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court's injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic."

Gateway City Church v. Newsom
Three weeks later, on February 26, the Supreme Court granted another injunction, this time in Gateway City Church v. Newsom.

Gateway City Church and four other churches requested an injunction to block a Santa Clara County order that prohibited all indoor gatherings while allowing any other indoor activities at up to 20% of a building's capacity. Santa Clara was the only county in California still not allowing gathering for worship after South Bay II blocked California's statewide prohibition. The Court of Appeals for the Ninth Circuit declined to block the county's order.

The Supreme Court granted an injunction in a brief order that included the following explanation: "The Ninth Circuit's failure to grant relief was erroneous. This outcome is clearly dictated by this Court's decision in South Bay United Pentecostal Church v. Newsom, 592 U.S. ___ (2021)."

Justice Kagan, joined by Justices Breyer and Sotomayor, wrote a one-sentence dissent: "I dissent for the reasons set out in South Bay United Pentecostal Church v. Newsom, 592 U.S. ___ (2021) (Kagan, J., dissenting)."

Tandon v. Newsom
Tandon v. Newsom, 593 U.S. 61 (2021), was the last major decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic. The decision significantly transformed existing religious-liberty doctrine by adopting the "most favored nation" approach, declaring that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise."

Cases

 * Jacobson v. Massachusetts,.
 * Marshall v. United States,.
 * Employment Division v. Smith,.
 * Church of the Lukumi Babalu Aye v. City of Hialeah,.
 * City of Boerne v. Flores,.
 * Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999).
 * South Bay United Pentecostal Church v. Newsom I, 140 S. Ct. 1613 (2020) (mem.).
 * Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020) (mem.).
 * Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam).
 * Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 889 (2020) (mem.).
 * High Plains Harvest Church v. Polis, 141 S. Ct. 527 (2020) (mem.).
 * Robinson v. Murphy, 141 S. Ct. 972 (2020) (mem.).
 * South Bay United Pentecostal Church v. Newsom II, 141 S. Ct. 716 (2021) (mem.).
 * Gateway City Church v. Newsom, 141 S. Ct. 1460 (2021) (mem.).
 * Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam).
 * Fulton v. City of Philadelphia,.