The NCSL Blog


By Lisa Soronen

The U.S. Supreme Court sent two cases involving limits on religious service attendance back to lower courts to reconsider in light of Roman Catholic Diocese of Brooklyn, New York v. Cuomo.

Supreme Court Zach Gibson / Getty Images fileIn that case the court ruled 5-4 that New York’s limits on attending religious services to 10 or 25 people while grocery stores, banks and laundromats, etc. could admit as many people as they liked, likely violated the First Amendment.

Prior to the New York case, the Supreme Court hadn’t struck down any stay-at-home orders. Lower courts in both cases ruled against the houses of worship. 

In High Plains Harvest Church v. Polis the church argued Colorado’s 50-person limitation on indoor worship services violated the First Amendment. The church argued that the governor discriminated against religious speech by “permitting and encouraging” protests in the wake of George Floyd’s death.

The district court rejected this argument noting that in a previous case the Supreme Court had allowed greater restrictions on religious services than on bars, casinos and gyms to stand. According to the district court, mass protests “appear to have less in common with religious services” that these activities. The 8th Circuit agreed with the district court and found no likely First Amendment violation.

Before the Supreme Court, the church broadened its argument to point out that other “critical businesses” in Colorado including grocery stores, gas stations and schools could operate without capacity limits.

Colorado argued that the case was moot because after Roman Catholic Diocese of Brooklyn, New York v. Cuomo it amended its public health order to include houses of worship as “critical business” with the same numerical capacity as other critical businesses. Justice Elise Kagan wrote a one-paragraph dissent, which Justices Sonia Sotomayor and Stephen Breyer joined, agreeing the case is moot.

Regardless, Colorado argued that the restrictions it had placed on houses of worship were constitutional: “The district court received uncontroverted evidence that closed, indoor environments where people spend a long duration in close contact—such as houses of worship—pose a higher risk of transmission than those settings where people have transient contacts—such as grocery stores. Environments with a similar risk profile based on the state of epidemiological knowledge—such as movie theaters and concert halls—were treated similarly based on risk.”

In Robinson v. Murphy, a catholic priest and a rabbi challenged the New Jersey governor’s executive order limiting the number of people who may attend indoor religious services to 25% of a room’s capacity or 150 people, whichever is lower. At least 10 people may always attend an indoor religious service.

A federal district court rejected their free exercise of religion claim noting that in New Jersey indoor religious gatherings have higher maximum capacities than secular indoor gatherings. The 3rd Circuit rejected the challengers’ appeal without a written opinion.

The challengers in Robinson v. Murphy pointed out before the Supreme Court that in New Jersey “essential” retail and non-retail businesses and numerous other secular activities, including schools, “are afforded either 100% or 50% of indoor capacity without numerical caps.”

New Jersey responded that every indoor business venue where people remain in close contact for extended periods like movie theaters and concert halls may only operate at 25% capacity, the same as houses of worship. While retail stores may operate at 50% capacity, if they hold a “gathering” only 10 people may attend.

“While most secular gatherings are limited to just 10 persons, religious services . . . have a floor of 10 people and a ceiling of 25% of the room’s capacity—matching the more generous limits for indoor business venues rather than the restrictive limits for indoor gatherings.”

Other than the brief dissent in the Colorado case, none of the justices wrote opinions in either of these cases.

Lisa Soronen is executive directdor of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.