The Court let stand a 25% capacity restriction, as well as a temporary ban on singing, but it invalidated California’s complete ban on in-person worship services. The balance of the Court’s ruling was summarized by Chief Justice Roberts, writing only for himself: “The State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect . . . insufficient appreciation or consideration of the interests at stake,” Roberts wrote. “Deference, though broad, has its limits.”
This result is consistent with a November 2020 decision, in which the Court temporarily enjoined New York State from enforcing an executive order that treats religious institutions different from secular ones in setting limitations on in-person gatherings. The New York order would have denied in-person gatherings of religious organizations, while “essential” business organizations such as garages, acupuncture clinics, campgrounds, and chemical manufacturers would have had no limitations at all. By its injunction, the Supreme Court referred the case back to a lower appellate court to consider it more fully under applicable law. In the California case, the Court has clarified the law, such that the New York order will almost certainly be permanently struck down.
While narrow in their immediate purposes, these two recent cases have broad and hopeful implications for the free exercise of religion. In view of the hostility to religious liberty in the Biden administration and new Congress, the Court’s role will be vital in protecting the First Amendment and enforcing the Religious Freedom Restoration Act, both of which will be under sustained assault under the current legislative and administrative regime.
In 1990, the U.S. Supreme Court handed down a controversial landmark decision in the case of Employment Div. of Oregon v. Smith, commonly known as the “Peyote case.” Two employees of a drug rehabilitation clinic were fired for ingesting peyote (the possession of which was illegal under Oregon state law) as part of religious ceremonies of the Native American Church. When the employees applied for unemployment compensation, the state denied their claim on the grounds that they had been fired for work-related misconduct, and were thus ineligible for benefits. On appeal, the Supreme Court held that because the law was generally applicable and Oregon had a legitimate interest in banning possession of peyote, possession for religious ritual is not protected by the First Amendment’s free exercise clause.
While narrow in their immediate purposes, these two recent cases have broad and hopeful implications for the free exercise of religion.
In contrast to the Peyote case, in 1993 the Supreme Court decided the case, Church of Lukumi Babalu Aye v. City of Hialeah (the “Santeria” case). The Court determined that the Florida city’s ordinance forbidding the “unnecessary” killing of “an animal in a . . . ritual or ceremony” violated the First Amendment, because the law singled out the particular religious practice of the minority religion, Santeria. Unlike the Oregon law, the city’s ordinance was not neutral and generally applicable, but rather discriminately aimed at the Santeria ritual. The ordinance applied “only against conduct motivated by religious belief,” and therefore was unconstitutional.
Also in 1993, in response to the Peyote case, the U.S. Congress passed, and then-President Bill Clinton signed into law, the Religious Freedom Restoration Act (“RFRA”), which acted as sort of executing law for the First Amendment’s free exercise clause, protecting liturgical and other exercises of religious liberty from generally applicable laws that otherwise might prohibit them. The practical result RFRA is sharply to narrow the scope of the Peyote decision, effectively limiting its holding to the facts of that case. Together with the Santeria case and its progeny, RFRA laws protect religious exercise from some generally applicable laws that might otherwise prohibit it.
The Supreme Court’s application of these protections has never been more urgent.
The current Congress and Biden Administration have indicated their hostility to RFRA and to the free exercise of religion more generally. For example, in the prior Congress, the House of Representatives passed the so-called “Equality Act,” which imposes secular transgender ideology on public institutions, and expressly denies RFRA defenses to violations of the Act. Similarly, the “Do No Harm Act,” likely to be revived in this Congress, broadly, if not completely, eliminates the effectiveness of RFRA, denying its efficacy to a broad range of secular ideologies that might be legislated by other acts of Congress.
[W]hile the holdings of the New York and California Covid-19 cases are narrow in application, their implication is broad, sending an important signal that a solid majority of the Supreme Court intends to enforce the Constitutional guarantee of the free exercise of religion.
While the prior Senate would not have passed either of these bills, the current Senate most likely will. President Biden has demonstrated his willingness to sign them by his imposition of executive orders (“EOs”) similar in tone and substance. For example, on his first day in office, the president issued “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” which tasks regulatory agencies to implement and enforce transgender ideology on both public and private institutions.
Thus, while the holdings of the New York and California Covid-19 cases are narrow in application, their implication is broad, sending an important signal that a solid majority of the Supreme Court intends to enforce the Constitutional guarantee of the free exercise of religion. Given the specter of hostile legislation, coupled with the Biden administration’s opposition to religious exercise, the Court will be busy indeed.
Kenneth Craycraft is an attorney and the James J. Gardner Family Chair of Moral Theology at Mount St. Mary’s Seminary and School of Theology, in Cincinnati.
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