SCOTUS: Lower Courts Must Reconsider Limits on Religious Service Attendance in Colorado and New Jersey

The U.S. Supreme Court sent two cases involving limits on religious service attendance back to lower courts to reconsider in light of Roman Catholic Diocese of Brooklyn, New York v. Cuomo. In that case the Court ruled 5-4 that New York’s limits on attending religious services to 10 or 25 people while grocery stores, banks, and laundromats, etc. could admit as many people as the liked, likely violated the First Amendment. Prior to the New York case the Supreme Court hadn’t struck down any stay-at-home orders. Lower courts in both cases ruled against the houses of worship.  

In High Plains Harvest Church v. Polis the church argued Colorado’s 50-person limitation on indoor worship services violated the First Amendment. The church argued that the governor discriminated against religious speech by “permitting and encouraging” protests in the wake of George Floyd’s death. The district court rejected this argument noting that in a previous case the Supreme Court had allowed greater restrictions on religious services than on bars, casinos, and gyms to stand. According to the district court, mass protests “appear to have less in common with religious services” that these activities. The Eighth Circuit agreed with the district court and found no likely First Amendment violation.

Before the Supreme Court, the church broadened its argument to point out that other “critical businesses” in Colorado including grocery stores, gas stations, and schools could operate without capacity limits.

Colorado argued that the case was moot because after Roman Catholic Diocese of Brooklyn, New York v. Cuomo it limited all numerical capacity restrictions for houses of worship. Justice Kagan wrote a one-paragraph dissent, which Justices Sotomayor and Breyer joined, agreeing the case is moot.

Regardless, Colorado argued that the restrictions it had placed on houses of worship were constitutional. “The district court received uncontroverted evidence that closed, indoor environments where people spend a long duration in close contact—such as houses of worship—pose a higher risk of transmission than those settings where people have transient contacts—such as grocery stores. Environments with a similar risk profile based on the state of epidemiological knowledge—such as movie theaters and concert halls— were treated similarly based on risk.”

In Robinson v. Murphy, a catholic priest and a rabbi challenged New Jersey governor’s executive order limiting the number of people who may attend indoor religious services to 25% of a room’s capacity or 150 people, whichever is lower. At least 10 people may always attend an indoor religious service.

A federal district court rejected their free exercise of religion claim noting that in New Jersey indoor religious gatherings have higher maximum capacities than secular indoor gatherings. The Third Circuit rejected the challengers’ appeal without a written opinion.

The challengers in Robinson v. Murphy pointed out before the Supreme Court that in New Jersey “essential” retail and non-retail businesses and numerous other secular activities, including schools, “are afforded either 100% or 50% of indoor capacity without numerical caps.”

New Jersey responded that every indoor business venue where people remain in close contact for extended periods like movie theaters and concert halls may only operate at 25% capacity, the same as houses of worship. While retail stores may operate at 50% capacity, if they hold a “gathering” only 10 people may attend. “While most secular gatherings are limited to just ten persons, religious services . . . have a floor of ten people and a ceiling 25% of the room’s capacity—matching the more generous limits for indoor business venues rather than the restrictive limits for indoor gatherings.”

Other than the brief dissent in the Colorado case, none of the Justices wrote opinions in either of these cases.