Last week, New York City Mayor Bill de Blasio addressed religious freedom and it did not go well. Asked about why large protests were okay during the pandemic but other gatherings were not, he said: “When you see a nation, an entire nation, grappling with an extraordinary crisis that’s deep-seated in 400 years of American racism – I’m sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to religious services.”

This type of response – treating religious worship as a nonessential practice rather than a fundamental right – helps explain why the issue of religious freedom stays in the news. Legal developments are happening at lightning speed and now the U.S. Supreme Court has weighed in as well.

Challenges to state laws

Previously, we predicted key legal questions for the Supreme Court would include whether church services were treated the same as similar activities and whether restrictions were written narrowly enough to respond only to unique health concerns of public worship. These questions will depend on specific facts in particular cases, rather than larger categorical answers (e.g., the state can decide or churches have unlimited rights to assemble).

The court had been asked to take, on an emergency basis, two challenges to state regulations of worship services.

The first was brought by Romanian-American churches near Chicago challenging Illinois’ limits on gatherings of more than 10 people.

The second was brought by a Pentecostal congregation in the San Diego area to challenge local and state regulations that limited gatherings to 100 people with social distancing.

To understand the actions by the court, a couple of things need to be stressed. First, the decisions were not really decisions on the validity of the restrictions (though that question is certainly in the background) but rather on whether the court would issue an emergency order to allow church services on Sunday, May 31.

Supreme Court decision

The Illinois case fizzled out. The challenged regulations expired on Thursday, May 28, so the concerns the church had raised with the earlier regulations were no longer relevant, and the new regulations do not include mandatory limits on gatherings.

Later, in a 5-4 decision, the Supreme Court declined to take the emergency petition from California. Two justices, however, wrote brief explanations for their votes.

Chief Justice John Roberts agreed with the decision to decline the case. He focused on the difficulty of proving that it is “indisputably clear” the restrictions are unconstitutional since “[t]he 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.”

The substantive part of Roberts’ opinion focuses on whether religious services are treated the same as other activities. He concludes:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Dissenting opinion

Four of the justices, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh would have ruled in favor of the church. Kavanaugh wrote an explanation of his vote joined by Justices Thomas and Gorsuch. Interestingly, this opinion focused on the same issue the chief justice had highlighted, though it came to a different conclusion about what the facts indicated. “The basic constitutional problem 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.”

Applying the settled legal rules that apply when religious practices are being treated differently from other practices, Kavanaugh argued that California should have to show that its legal regulations were drafted in a narrow way that would not affect religious freedom more than absolutely necessary to advance the appropriate protection of public health. Quoting a recent court of appeals decision, Kavanaugh wrote:

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”

The dissenting justices recognized that the state had to be given latitude in protecting public health, but concluded: “The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.”

The bottom line

The bottom line for Illinois is that the case was mooted by changes in regulations.

For California, the church was not allowed to host large gatherings on May 31, but it can proceed with its case if the restrictions continue. These opinions will provide a roadmap of what the church would need to show to prevail.

As the Illinois case demonstrates – with regulations changing in response to public health developments – the future of the California case and lawsuits in other states will be fluid, and it will probably be some time before we get final resolution for key questions.

The most encouraging sign from the court is shared by both sides of Friday’s decision: Religious practice must not be singled out for disfavored treatment. The fact-specific nature of the case, and the unique public health context in which it arose, made it more difficult here to agree on the application of the principle, but the principle itself is a reassuring starting point.