Fighting Anti-Religious Discrimination During COVID

At the beginning of the COVID-19 pandemic it seemed as though everything but grocery stores and hospitals were closed, including churches. Yet, despite a gradual reopening of the economy over the summer and a litany of social justice protests, churches in many U.S. jurisdictions remained closed. Why was this the case?

A recent webinar hosted by the Catholic University of America’s Institute for Human Ecology in conjunction with Faith and Law, a think tank, explored this double standard. The webinar included Mark Rienzi, a law professor at Catholic University and President of the Beckett Fund for Religious Liberty, as well as William Saunders, also of Catholic University.

As Rienzi said, at the start of the pandemic there was plenty of confusion over what would and wouldn’t help to slow the spread of the virus. As a result, the courts were initially very deferential to governors who wanted to close churches to protect against COVID transmission. If the laws were challenged, in “most cases the government won, including severe restrictions and shutdowns on if you could go to church at all and how many people could go.”

In late Spring and early Summer things began to change. The economy began reopening with more in-person opportunities for commerce allowed. In Nevada, casinos were allowed to open at a reduced percentage of their normal capacity while churches had a hard-cap, regardless of the size of their buildings.

“It’s a safe bet that Nevada’s economy depends an awful lot on casinos, so opening the casinos is financially an important thing for Nevada… The problem [Supreme Court Justice Neil] Gorsuch pointed out with [Calvary Chapel Dayton Valley v. Nevada Governor Sisolak] is that if you’re going to say that it’s ok for people to sit at a blackjack table for hours on end then you don’t have a very good reason for those same people to be 10 feet away from each other in church,” stated Rienzi.

Large public protests centered around the death of George Floyd and the BlackLivesMatter movement were permitted to convene outside, while religious ceremonies still have strict prohibitions. As Rienzi described, the government basically said “these protests are ok, but if 100 people gather for an outdoor worship service they are going to jail.”

With both Calvary Chapel as well as another similar case filed by South Bay United Pentecostal Church against California Governor Gavin Newsom, the court sided with state governments. Early in the pandemic, justices were unwilling to strike down measures intended to fight COVID, even if religious gatherings were uniquely restricted.

A turning point came in Fall 2020 with Roman Catholic Diocese of Brooklyn v. Cuomo. In earlier cases the Supreme Court had been deferential to the standard established at the start of the pandemic of nearly unquestioned executive power to stop the spread. But, as life under COVID restrictions dragged on, the court became less convinced of the need for supreme state powers to fight virus transmission.

“That shift from the deferential approach of the court to saying that you need proof to take away someone’s constitutional right, that’s what the court said for the diocese of Brooklyn,” remarked Rienzi.

Just as in Nevada, the key argument was that while non-religious activities were allowed to happen with a percentage of normal capacity, religious services had a hard cap. This means that an event in New York City’s St. Patrick’s Cathedral with every participant having a basketball court sized amount of space available to them could be shut down while other activities would continue.

Unlike the earlier Nevada case, late in the pandemic there was enough data on contact tracing to prove that religious services did not present a disproportionate threat. In fact, a study done in New York that analyzed 46,000 coronaviruses cases showed that religious activities represented only .69% of verifiable COVID transmissions. In contrast, household and social gatherings accounted for 73.84% of traceable COVID infections.

“What the data shows over and over again is that the targeting of religion that has happened and the claims that religious worship is particularly dangerous turns out to be false,” said Riezi. Instead of treating all citizens, religious or not, the same, the state governments had been making “value judgements” about which activities were and weren’t permissible.

At present Washington, DC is the only remaining jurisdiction with a hard cap on the number of attendees of a religious event, but this is hopefully going to change soon. After the Diocese of Brooklyn won against Cuomo many states changed their policies, as they rightfully should have from the start.

Reizi ultimately cautioned against ultimate deference to executive authority, urging state legislatures to act as a check on excessive actions by governors.