By Lisa Soronen
Acting alone, Justice Neil Gorsuch refused to rule on an emergency petition challenging Colorado’s disaster emergency statute, meaning the statute remains in place.
In Denver Bible Church v. Polis two churches argued before the Supreme Court that the Colorado Disaster Emergency Act (CDEA) violates the First Amendment. The CDEA allows the Colorado governor to declare a disaster emergency and issue executive orders to combat natural and man-made disasters. It contains exemptions related to noninterference with labor disputes, news or comment on public affairs, and the work of police, firefighters, and the military.
According to the churches the CDEA discriminates against religion in violation of the First Amendment because it “exempts certain non-religious activities but does not exempt closely comparable religious activities.” And, according to the churches, Colorado is unable to offer a narrowly tailored, compelling reason for treating churches differently.
A Colorado district court struck down capacity limits on church attendance and a mask requirement at church because comparable secular activities weren’t required to follow these limits. But the district court didn’t strike down the entire CDEA stating: “[A] fact-specific inquiry is required to determine whether the exemptions at issue, on their face or in practice, place religious exercise at a disadvantage. The CDEA’s exemptions do not do so.”
In its brief asking the court not to get involved in this case Colorado agreed with the district court that the CDEA doesn’t violate the First Amendment.
Colorado also argued before the Supreme Court that this case was moot. According to Colorado, what the churches really want in this case is to be able to host as many people in their building as they like, which Colorado has allowed since December. Likewise, “Colorado converted the prior disease control restrictions—such as distancing requirements—into nonbinding guidance. Such protections are now just ‘strongly encouraged’ for all, including houses of worship. The only remaining general restriction that applies to all establishments, including houses of worship, is facial coverings, but a specific exemption for religious practice permits their temporary removal to participate in religious services.”
As is customary, Gorsuch didn’t explain why he didn’t think the court should get involved in this case.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.