California and Maine Continue Pestering Religious Freedom

February 15, 2021

By Kaitlyn Shepherd

Over the past year, churches have faced unprecedented challenges because of the coronavirus pandemic, and they have demonstrated remarkable resilience as they have adapted to serve their congregations in new and creative ways. Many churches initially suspended indoor worship services to comply with government mandates and protect their communities by slowing the spread of the novel illness. During the summer months, when churches began cautiously reopening, courts generally deferred to local governments by upholding restrictions on indoor worship services and gatherings.

However, with the confirmation of Justice Amy Coney Barrett to the Supreme Court in October, churches have begun to see more success in court. In November 2020, the Supreme Court enjoined New York Governor Andrew Cuomo from enforcing restrictions that imposed 10 and 25-person caps on religious gatherings. Although the justices acknowledged that they were not public health experts, they remained adamant that "even in a pandemic, the Constitution cannot be put away and forgotten." In his concurrence, Justice Gorsuch remarked that "[i]t is time -- past time -- to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques."

In December 2020, the Ninth Circuit Court of Appeals enjoined Nevada Governor Steve Sisolak from enforcing mandates that imposed a 50-person cap on religious gatherings. Less than two weeks ago, in Harvest Rock Church et al. v. Newsom, the U.S. Supreme Court enjoined California from enforcing a total ban on indoor worship services. Although the court's decision upheld California's prohibition on indoor singing and approved mandates limiting the size of church gatherings to 25 percent of building capacity, it signaled that states and localities must respect First Amendment rights even during a pandemic.

Despite these clear admonitions that religious freedom must be respected, churches continue to face opposition as they attempt to reopen safely. Despite the Supreme Court's recent decision, California's Santa Clara County has continued to prohibit all indoor worship services. The county's most recent mandate concerning indoor gatherings states that "[b]ecause indoor gatherings continue to pose a severe risk of COVID-19 transmission, all indoor gatherings are currently prohibited." On February 12, the Ninth Circuit ruled against five California churches that challenged the county's ban. Although the court found that the ban "affect[ed] far more activities than most other jurisdictions' health measures," it upheld the ban because it applied equally to religious and secular entities and did not single out churches for disparate treatment.

While we must remain vigilant to ensure religious freedom is respected in California, it's not the only state we must keep an eye on.

On February 11, attorneys on behalf of Calvary Chapel of Bangor, Maine, asked the Supreme Court to grant an injunction pending appeal or alternatively, to overturn the lower courts' decisions to uphold Governor Mills' restrictions against churches. After the Supreme Court struck down California's total ban on indoor worship, Maine has taken California's place as the state with the most severe restrictions on churches, imposing a limit of only 50 people. Governor Mills' order clearly discriminates against religious entities. The order is neither neutral nor generally applicable because churches may open their buildings to an unlimited number of people for the purpose of providing food, shelter, social services, or counseling, but may not hold worship services of more than 50 people.

For the sake of our freedom and our country's well-being, pray and act so that the day will come soon where government officials and courts alike start to fully respect the religious freedom protected by the First Amendment.