Governors Feel ‘Seismic Shift’ in Free Exercise Law

On Tuesday, two churches were granted injunctive relief from restrictions under their public health orders by their state.

The Supreme Court, by a six to three decision, granted injunctive relief to High Plains Harvest Church in Ault, Colo. and its pastor, Mark Hotaling. They filed suit against Colorado Gov. Jared Polis and Jill Hunsaker Ryan, the Colorado Department of Public Health and Environment’s executive director, in their professional capacities.

The facts of the case were very similar to Roman Catholic Diocese of Brooklyn v. Cuomo. Through a public health order, the state of Colorado implemented a restriction on the number of people who can attend worship services, in this particular case, 50 if they live in an area determined to have a certain amount of community spread of COVID-19. However, that restriction doesn’tdoesn’t apply to protests, stores, and schools. 

The plaintiff’s attorneys in their compliant wrote, “Today in Colorado it is perfectly legal for hundreds of shoppers to pack themselves cheek by jowl into a Lowes or other big box store or patronize any one of the thousands of other retail establishments that are not subject to draconian numerical limits. And today in Colorado it is perfectly legal for thousands of protesters to march and stand shoulder-to-shoulder and chant for hours on end, all the while ignoring any semblance of social distancing, so long as the protesters’ message is officially approved by the State. But if 51 people were to meet to worship God in a small rural church in Ault, Colorado, they would do so at the risk of being fined and imprisoned.”

After the Supreme Court enjoined New York Gov. Andrew Cuomo’s restrictions in a five to four opinion, it is not surprising to see how these cases are now going to go. The tide has turned.

The public health orders must be neutral. They can’t cause irreparable harm, and there has to be in the public interest. Like New York’s, Colorado’s order is not neutral, does cause irreparable harm, and is not in the public interest.

“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But 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,” the majority wrote in Roman Catholic Diocese of Brooklyn v. Cuomo.

The Supreme Court’s order on Tuesday reads, “The August 10 order of the United States District Court for the District of Colorado is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo.”

This time, however, the majority was joined by Chief Justice John Roberts. It’sIt’s unclear why he joined the majority this time. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, dissented because, like in New York, the restrictions were lifted. The majority, however, in New York, felt it necessary to rule on the question in case the restrictions were put back in place, and the Catholic Diocese of Brooklyn had to petition to seek injunctive relief once again.

On Tuesday, a three-judge panel of the 9th Circuit Court of Appeals gave Calvary Chapel Dayton Valley in Nevada injunctive relief. The case was Calvary Chapel Dayton Valley v. Sisolak. If that case sounds familiar, it should. This was the church the Supreme Court denied injunctive relief to back in July. 

Judge Milan D. Smith, Jr. wrote the opinion, and he pointed to the Supreme Court’s recent decision. “The Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo arguably represented a seismic shift in Free Exercise law, and compels the result in this case.”

“The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. As a result, the restrictions in the Directive, although not identical to New York’s, require attendance limitations that create the same ‘disparate treatment’ of religion,” he added.

Judge Smith noted that the district court in Calvary Chapel Dayton Valley denied injunctive relief because the court applied a rational basis review, not strict scrutiny. 

The Supreme Court’s decision in their Roman Catholic Diocese of Brooklyn v. Cuomo decision made it clear that strict scrutiny is required, as it should be since the Freedom of Religion is a fundamental right.

Smith is right, their decision is a seismic shift in Free Exercise law, but it shouldn’t be. Nevertheless, it’s a welcome shift for those who care about religious freedom.