Religious Institutions Update: December 2020

In Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo, No. 20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020) (per curiam), the U.S. Supreme Court enjoined enforcement of the 10- and 25-person occupancy limits on churches in New York Executive Order 202.68, pending appeal in the U.S. Court of Appeals for the Second Circuit. This was an abrupt shift for the court as compared with two cases reported on previously: Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 203 (2020) (see Holland & Knight's Religious Institutions Update: October 2020) and South Bay Pentecostal Church v. Newsom, 140 S.Ct. 1613 (2020) (see Holland & Knight's Religious Institutions Update: July 2020). The court determined that the order was not neutral or generally applicable and thus was subject to strict scrutiny because it singled out houses of worship for especially harsh treatment. In addition, the court ruled that statements made in connection with the challenged rules could be viewed as targeting the ultra-Orthodox Jewish community. Concurring, Justice Neil Gorsuch was the most outspoken; he quipped, "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?" Therefore, the court decided that the plaintiffs were likely to prevail; demonstrated irreparable harm because remote viewing "is not the same as personal attendance" due to the Eucharist and other religious practices, and an injunction was not contrary to the public interest because the state failed to prove that plaintiffs' worship practices spread the virus, notwithstanding the safety measures they took. The dissent (Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan) would have withheld relief as moot because the governor expanded capacity after the court agreed to hear the case, whereas the majority decided that the capacity could be curtailed again. Dissenting, Justices Sotomayor and Kagan disagreed that freedom of religion was at issue and argued that houses of worship were actually treated preferentially and the governor's comments were neutral. Justices Gorsuch and Roberts scuffled over South Bay and the prior judicial deference to pandemic orders. Concurring, Justice Brett Kavanaugh signaled that he would accept neutral and even significant restrictions on religious and secular gatherings alike.

In light of Roman Catholic Diocese of Brooklyn, the Supreme Court has since returned several cases to the lower courts for reconsideration. See, e.g., Robinson v. Murphy, 2020 WL 7346601 (U.S. Dec. 15, 2020); High Plains Harvest Church v. Polis, 2020 WL 7345850 (U.S. Dec. 15, 2020). Justices Kagan, Breyer and Sotomayor dissented in High Plains Harvest Church on the grounds the case was moot because Colorado had lifted a 50-person cap in the aftermath of Roman Catholic Diocese of Brooklyn. U.S. courts of appeal have separately remanded cases for additional consideration in light of Roman Catholic Diocese of Brooklyn, such as in Harvest Rock Church, Inc. v. Newsom, No. 20-55907, 2020 WL 7075072 (9th Cir. Dec. 3, 2020) and even South Bay United Pentecostal Church v. Newsom, No. 20-55533, 2020 WL 7224194 (9th Cir. Dec. 8, 2020). However, a few courts have gone on to uphold limitations imposed on schools and places of worship in light of Roman Catholic Diocese of Brooklyn. Discussion of these cases follows under separate headings.

In Commonwealth v. Beshear, No. 20-6341, 2020 WL 7017858 (6th Cir. Nov. 29, 2020), the court stayed the district court's preliminary injunction pending appeal of the governor's executive order prohibiting in-person instruction at all public and private elementary and secondary schools in Kentucky between Dec. 7, 2020 and Jan. 4, 2021, but exempting "small group in-person targeted services" and private schools conducted in a home solely for the members of the household. The district court considered it especially relevant that the order does not limit preschools, colleges or universities. But the appellate court ruled that unlike the order at issue in Roman Catholic Diocese of Brooklyn, which treated schools, factories, liquor stores and bicycle repair shops, to name a few, less harshly than houses of worship, the Kentucky order contains "[n]o such comparable exceptions." The court continued, "The contours of the order at issue here also in no way correlate to religion, and cannot be plausibly read to contain even a hint of hostility towards religion." The court determined that the order is neutral and generally applicable and, thus, strict scrutiny is inapplicable under the Free Exercise Clause and...