Justices revive religious groups’ attempts to block COVID-related restrictions in Colorado, New Jersey

The Supreme Court on Tuesday tossed out a pair of lower-court rulings that had permitted states to enforce COVID-related restrictions at worship services. The two brief orders from the justices instruct the lower courts to take another look at religious groups’ challenges to restrictions in Colorado and New Jersey – and this time, the justices indicated, the lower courts should decide the challenges in light of the Supreme Court’s Nov. 25 ruling that lifted New York’s COVID-related limits on attendance at worship services.

Tuesday’s orders are further evidence of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.

In the Colorado case, the justices threw out an Aug. 10 order by a federal district court that denied a request by High Plains Harvest Church, a small church in northern Colorado, to bar the state from enforcing capacity limits. Justice Elena Kagan dissented from Tuesday’s order, penning a brief opinion – joined by Justices Stephen Breyer and Sonia Sotomayor – in which she argued that the case was moot because Colorado has already lifted the limits at issue.

High Plains Harvest Church came to the Supreme Court on Dec. 4, after the U.S. Court of Appeals for the 10th Circuit rejected the church’s request to block the limits while the church pursued its appeal. The church contended that public health orders issued by Colorado Gov. Jared Polis (D) and Jill Ryan, the director of the state’s public health department, unfairly limit in-person attendance at houses of worship to 50 people, regardless of the size of the building, while allowing many secular businesses to operate without any attendance limits. The state’s actions violated the Constitution’s free exercise clause, the church alleged, noting that the exemptions in the public health orders were, “for practical purposes, indistinguishable from the exemptions that led the Court to enjoin” the New York restrictions last month. Moreover, the church continued, the state violated its right to free expression by allowing Black Lives Matter protests while limiting attendance at worship services.

In a filing on Dec. 9, Colorado told the justices that the case was moot because the church “already has the relief it seeks”: The state recently lifted the capacity limits on “all houses of worship at all times in response to this Court’s recent decisions.” But the state also defended the current public health orders as valid, arguing that it imposed them to curb the spread of COVID-19 and that there was no evidence that the state was motivated by an intent to discriminate against religion. The limits on indoor worship services, the state stressed, cannot be compared to “the spontaneous protests after George Floyd’s death,” which occurred outdoors.

The Supreme Court’s unsigned, one-paragraph order vacated the federal district court’s ruling denying the church’s request to prohibit the state from enforcing the limits and sent the case back for the district court to reconsider the issue in light of the Supreme Court’s ruling in the New York case, known as Roman Catholic Diocese of Brooklyn v. New York. Kagan’s dissent emphasized that the state has already lifted its limits on attendance at worship services as a result of that decision. “[T]here is no reason” at this point to believe that Colorado “will reverse course — and so no reason to think Harvest Church will again face capacity limits,” Kagan wrote. As a result, she concluded, the “case is well and truly over.”

The court granted similar relief – but this time without any recorded dissents – in the New Jersey case, which involves state rules that generally limit attendance at houses of worship to the smaller of 25% of capacity or 150 people. One of the plaintiffs, a Roman Catholic priest, complained that the restrictions allowed him to hold in-person Mass for only about 20 members of his 175-person congregation at a time, even though the church, located in North Caldwell, New Jersey, holds 100 people. As in the Colorado case, the challengers – who also include a rabbi who presides over a synagogue in Lakewood, New Jersey – contended that the attendance limits treat religious gatherings less favorably than secular activities, in violation of their First Amendment rights.

The New Jersey plaintiffs also challenged the state’s mask mandate, which generally requires that masks be worn indoors. The plaintiffs said the mandate treats religious groups less favorably than secular groups because the mandate contains exemptions for secular purposes – such as eating and health reasons – but allows only momentary removal of masks in religious settings.

In a response filed on Dec. 3, New Jersey acknowledged that the lower courts “did not have the benefit of this Court’s decision in Roman Catholic Diocese of Brooklyn” when they denied the challengers’ request for relief. Therefore, the state conceded, it would be appropriate for the Supreme Court to send the case back to the lower courts for them to take another look at the case in light of that ruling – precisely the action the Supreme Court took on Tuesday.

This post was originally published at Howe on the Court.