Washington, D.C., Mayor Muriel Bowser has revised restrictions on church gatherings after the city’s Catholic archdiocese pointed to a recent Supreme Court decision in a lawsuit against her.
The orders, issued Wednesday night and which took effect Thursday, raise the city’s 50-person capacity limit to a 25% church occupancy limit or a maximum of 250 people. The archdiocese sued last week, alleging that Bowser’s hard cap violated the Religious Freedom Restoration Act because businesses were not subject to the same strictures. The archdiocese pointed to the Supreme Court’s decision in a recent case, Roman Catholic Diocese of Brooklyn v. Cuomo, as a precedent for its position.
That case, which the court decided the day before Thanksgiving, has proven to be a milestone in religious liberty litigation during the pandemic. In it, the court gave New York Catholic churches and Jewish synagogues an injunction from Gov. Andrew Cuomo’s orders capping attendance more harshly than he did nearby businesses. The court has since cited the case in three other decisions in California, Colorado, and New Jersey — all excusing churches from state-mandated orders and ordering lower courts to reexamine their cases in light of New York’s decision.
And that court’s attitude has trickled down to lower courts, as well as states trying not to run afoul of the Supreme Court. The briefs in the California, Colorado, and New Jersey cases all cite the New York ruling as correctly decided — before arguing that the situations in their states were different enough to keep pandemic restrictions in place. Colorado, in a preemptive move similar to that in Washington, erased all its worship limitations before filing to the court. New Jersey, while claiming the mantle of religious freedom protector, wrote that the restrictions must be kept in place for public health.
But in all cases, the Supreme Court seems to be signaling a widening regard for the pleas of churches, said Christopher Ferrara, the attorney representing the houses of worship in the New Jersey case.
“We are getting a very clear message from the Supreme Court that governments cannot set up any rules that apply to places of worship, or worship activities, but not to other, comparable secular activities,” he said.
A Nevada appeals court judge on Tuesday took a similar opinion, pointing to the spate of Supreme Court decisions as representing a “seismic shift in Free Exercise law.” In that case, raised by the Las Vegas megachurch Calvary Chapel Lone Mountain, Judge Milan Smith of the 9th U.S. Circuit Court of Appeals reversed Gov. Steve Sisolak’s 50-person attendance restrictions.
Smith added that the Supreme Court’s opinion in Roman Catholic Diocese of Brooklyn v. Cuomo “compels” him to do so.
“Just like the New York restrictions, the directive treats numerous secular activities and entities significantly better than religious worship services,” Smith wrote of Sisolak’s orders.
Sisolak responded in a statement, saying that he was “disappointed” by the ruling.
The reversal carried a special significance because earlier this year, the 9th Circuit refused to grant an injunction to another evangelical church, Calvary Chapel Dayton Valley, after it protested against Sisolak’s orders. The church appealed to the Supreme Court, which also refused it an injunction, along with another church in California.
Chief Justice John Roberts at the time was the decisive vote against their claims, writing that he did not believe in issuing injunctions without serious cause. Justice Amy Coney Barrett swung the court the other way in the New York case, her first major action on the court since her confirmation.
