Last week a federal judge in Washington, D.C., struck down the nation’s last numerical cap on how many people can attend worship services. The government lost for what has become a common reason: It could offer no evidence that it needed to impose harsh limits on worship that do not apply at restaurants, train stations, or office buildings.
The past year of COVID has brought us many things we had never seen before, including widespread government orders forbidding attendance at houses of worship. Although most churches, synagogues, mosques, and other places of worship voluntarily closed early in the pandemic, eventually many had to fight in court for their First Amendment right to resume worship activities.
The arc of those cases teaches an important lesson about the role of courts in protecting constitutional rights, even in emergencies. When courts simply defer to governments about the need to restrict liberty, governments will restrict more liberty. Worse, they will favor the interests they think are important, and restrict rights that they think are not so important. But when courts scrutinize government claims — when they ask questions and require support before allowing governments to restrict liberty — then constitutional rights are far more secure.
The COVID religious liberty cases demonstrate this lesson playing out over the past year. Early in the pandemic, courts were quite deferential to governors and mayors who said they needed to outlaw in-person religious worship. The issue reached the Supreme Court for the first time last May in a case called South Bay Pentecostal Church v. Newsom. There, Chief Justice Roberts explained that COVID restrictions were “subject to reasonable disagreement” and that governments should get “especially broad” latitude, not to be second-guessed by judges. As a result of this deferential approach, governments won virtually all the early cases about closing houses of worship.
In response to these rulings, some governments felt emboldened to play favorites and engage in targeting. Most famously, New York Gov. Andrew Cuomo targeted his COVID orders very specifically at Orthodox Jewish neighborhoods — even while leaving other neighborhoods with higher COVID levels out. Many governments allowed large-scale protests over the death of George Floyd — while still outlawing smaller outdoor gatherings for religious purposes. And governments began loosening COVID restrictions in order to allow what they viewed as important industries (think casinos in Nevada and movie production in California) to reopen while still restricting the return to worship.
For a while, governments got away with it, trusting that deferential courts would allow them to restrict rights selectively, without facing any serious judicial scrutiny. But eventually the courts caught up. The key turning point was a pair of Supreme Court rulings at Thanksgiving in favor of synagogues and churches challenging Cuomo’s restrictions. The rulings, known as Diocese of Brooklyn v. Cuomo, marked a significant change: The court wanted to see some proof from the government that it actually needed to restrict worship. And because the government had not presented such evidence — in fact, there was “no evidence” that the churches and synagogues at issue had contributed at all to the spread of COVID — the court found it “hard to believe” that the prohibited religious worship “would create a more serious health risk than the many other activities that the State allows.”
What happened next should not be forgotten: Once the courts began requiring some proof from the government for its restrictions, those restrictions — and the public health claims on which they had been based — fell apart. Nevada’s preferential treatment of casinos? Rejected by a court as unjustified in light of the state’s treatment of restaurants and casinos. California’s? Rejected by the Supreme Court, with Roberts noting that deference “has its limits,” particularly because the Constitution “entrusts the protection of the people’s rights to the Judiciary.” Most of the country has now stopped discriminating against religious worship — either losing in court or voluntarily changing the law — because there wasn’t evidence that worship was more dangerous than many other allowed activities.
How strong was this trend? Cuomo actually went back to the lower courts and asked them to enter orders against his restrictions so he did not have to defend them with evidence at all. This was unsurprising, given recent revelations that many of New York’s public health authorities had recently resigned, in part because Cuomo had been asking them to make the science match his political announcements. Indeed, Cuomo’s own data suggested that attending houses of worship was much safer than other activities. So much for following the science — it turns out the science had been asked to follow the politics instead.
The lesson here is important, and it is not limited to COVID or religious liberty. When governments want to restrict our rights, courts must insist on some evidence about the alleged harm. Without real judicial scrutiny, governments will be tempted to ignore rights and play favorites. Holding the government’s feet to the fire — and making it justify restrictions it wants to impose — is the best way to protect freedom.
A year of COVID has taught us many hard lessons. Let’s hope the lesson about how to protect freedom is one we won’t soon forget.
Mark Rienzi is the president of the Becket Fund for Religious Liberty and a professor of law at the Catholic University of America.