In unsigned orders, the justices wiped away lower court opinions in challenges that went in favor of the states: one brought by the Rev. Kevin Robinson and Rabbi Yisrael A. Knopfler in New Jersey and the other brought by a small Colorado church.
The cases highlight the impact of Justice Amy Coney Barrett on the bench. Before her arrival, Chief Justice John Roberts had sided with the liberals, including the late Justice Ruth Bader Ginsburg, against houses of worship in similar disputes. Since Barrett’s arrival, however, and the establishment of a strong 6-3 conservative majority, the court now has reversed course and has the necessary votes to side with religious groups.
“We have never before seen restrictions as severe, extensive and prolonged” he said, adding that the pandemic has resulted in “previously unimaginable restrictions on individual liberty.”
The New Jersey challenge concerned restrictions related to limiting attendance at houses of worship as well as the state’s “mask mandate” that critics said violated the free exercise of religion because there are exemptions for secular reasons including health, exercise and eating, but masks are only allowed to be removed momentarily in religious settings.
New Jersey Attorney General Gurbir Grewal defended the state’s restrictions telling the justices that the state as “accommodated religious conduct — ensuring religious activities receive at least as much protection as secular conduct, if not more.”
New Jersey requires that religious gatherings fill no more than 25% of the room.
Grewal stressed that Covid-19 has infected more than 13 million people in the United States and that “such sobering numbers are getting worse” in a state that has already lost some 15,000 to the virus. The state also requires masks to be worn indoor at all venues. The only exception is where an activity cannot be physically performed with a mask on, the other is for eating (or receiving communion or drinking from the Kiddush cup).
Liberal justices Elena Kagan, Stephen Breyer and Sonia Sotomayor dissented. Roberts did not note how he voted. It would have taken five justices to grant the request.
The dispute was brought against Jill Hunsaker Ryan, Executive Director of the Colorado Department of Health and Environment, who had issued an order capping attendance at houses of worship to 50 people. Lawyers for the church said the state’s policy treated churches differently than secular organizations in violation of the constitution.
The lawyers said the church members feel “as though they have stepped through the looking glass into a world where the right to shop for gardening supplies is a favored activity while meeting as a body to worship God corporately has been relegated to the category of unnecessary.” Pandemic-related restrictions were “overbroad, untailored closure orders,” they wrote.
Lawyers for the state said that Colorado has recently lifted its public health order to remove capacity limits. “All houses of worship remain categorized as critical businesses in Colorado, they now have no more restrictions than any other critical business in the state, and indeed, have the maximum degree of flexibility to any organization under Colorado public health law,” the state attorney general argued.
Kagan, writing for the liberals, pointed to the fact that the restriction was dropped after the Supreme Court’s order in the New York case and said the case was now moot.