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when the united states supreme court pantheonizes the free exerciSe clause during the pandemic

March 2, 2021


by Blandine Chelini-Pont, Professor of Contemporary History at the Université d'Aix-Marseille, member of LID2MS (Aix-Marseille) and associated with GSRL-EPHE-Université PSL. Her research focuses on religion, politics and the law in the United States.



Since the end of February 2020, US governors were on the front line deciding which measures to put in place against the pandemic. Though imposed stay-at-home orders were rather diverse, a certain uniformity developped with respect to places that welcomed the public, in line with the schools' example. Also, public gatherings were banned overall. However, where religious gatherings and places of worship are concerned, local officials were rather cautious. This did not stop the fight over 'free religion' during the presidential campaign and led to hundreds of lawsuits before the federal courts against the intensification of measures limiting access and public gatherings. At least five of them went all the way to the Supreme Court and provided an opportunity to take a stance, now with a majority, on the sacralization of religious freedom.

November 25, 2020 Supreme Court decision
November 25, 2020 Supreme Court decision



Pennsylvania was the first state to declare a religious exemption to its stay-at-home order on March 19, 2020. Between March and May, Delaware, Louisiana, Michigan, Mississippi, New Hampshire, Tennessee, West Virginia, Florida gave similar orders. By exempting places of worship, the Florida governor even forbade cities and counties from suspending on their end religious Easter celebrations (video).

In states without lockdown measures, closing public places was often based on differentiating between essential activities - of which systematically places of worship - from non-essential. The governor of Texas, Greg Abbott, thus allowed worship services while advising church leaders to maintain social distancing and put safety measures in place. In Spring 2020, restrictions on gatherings and access to places of worship is therefore sparse, while freedom is drastically reduced in Europe.




On their end, at least during the first three months of the pandemic, several denominations limited or suspended their own services and went online or used audiovisual, such as the Catholic Church, the liberal Jewish Federations, the National Association of Evangelicals, the Mormons and also the National Muslim Task Force on COVID-19, created for the occasion. These denominations also reduced and controlled people's access to rituals in order to avoid contamination.


However, despite restraint by local authorities and a fairly generalized sense of responsibility by religious groups, other denominations, with congregationalist, evangelical and pentecostal leanings, as well as orthodow Jewish communities, refused to self-limit and made it known. They stated and reclaimed their "freedom" and their absolute undeniable right to express their faith.


In New York State, ultra-orthodox Jewish congregations, though the first cluster of the pandemic during Purim, continued to hold funerals in tight and public processions, without face coverings, despite the ban on circulation in the streets. In Baton Rouge, Louisiana, the activism of Pastor Tony Spell from the Pentecostal megachurch Life Tabernacle was largely covered by the media. The surge in favor of "free" places of worship grew at the same time as the opposition against wearing masks, fanned by the Trump campaign repeatedly accusing 'Dems' from wanting to "close the churches". Videos started circulating showing people being arrested by the police while they were heading for prayer...



Tweet by Donald Trump on October 7, 2020 (original not available online since the account has been suspended).


As measures against openings and access got stricter, religious opposition moved to the courts. Hundreds of associations - including eventually the Catholic diocese - filed emergency injunctions on first amendment violations and this for various reasons, from protesting the ban on public gatherings (which prevents outside worship) to regulations on the number of people in places of worship.

How the federal courts handled these then showed the philosophical differences in the judges' profiles: according to a study done by the jurist Zalman Rotschild, as a resident of the Stanford Constitutional Law Center, when the judges were nominated by Democratic presidents, 100% of the decisions ruled in favor of the public authorities. 64% were favorable to religious plaintiffs when the judges had been appointed by previous Republican presidents. The percentage climbed to 96% with those nominated during D. Trump's term.




This duality really played out at the Supreme Court with three out of the five decisions on cases that were presented between May and December 2020. It showed how it has shifted from a relative parity between conservative judges and liberal ones to a clear conservative majority after the last minute nomination of judge Amy Coney Barrett.


Two cases were examined at the end of May and end of July. In the first one, an emergency injunction from the Harvey Rock Church called for the cancellation of the order given by the California governor reducing the number of people in places of worship to 25% of the building's capacity or to a maximum of 100 people. For the second case, the South Bay United Pentecostal Church in Nevada pleaded religious discrimination with the cap of 50 people in places of worship or in buildings where the public is in close quarters such as concert halls, while no measures were taken for casinos. In both cases, the Supreme Court's majority rule had been that the states had not violated the First Amendment. It won by a narrow 5 to 4 margin: the conservative chief justice John G. Roberts Jr. then went along with the liberal judges.


But a third case came up in November, brought on by both the Diocese of Brooklyn and the Agudath Israël Orthodox Jewish federation and followed by many amici curiae of that state and other states. Governor Cuomo had  limited in-person attendance at houses of worship to 10 to 25 people depending on the areas classified as red or orange super-contamination zones. The Supreme Court sided with the plaintiffs even though the cap in question had seriously been reevaluated in the meantime and had not been generalized to the whole state. The Supreme Court, in its per curiam decision, did not argue on the disproportionate or inappropriate nature  of the measure, nor the lack of mediation about access with those in charge of the services. 


It argued this case on the basis of principle: "Even in a pandemic, the Constitution cannot be put away and forgotten (...)". The restrictions put in place had "strike at the very heart of the First Amendment's guarantee of religious liberty". In Neil M. Gorsuch's opinion which followed the majority ruling, he went further: the government could not ignore the First Amendment, (even) during a crisis. The New York government, as other governments elsewhere who had done the same, could not treat religion as a non essential issue while leaving open restaurants, marijuana dispensaries, casinos...A few days later, the Supreme Court asked the California DIstrict Court to revise the decision it made in July.


In far too many places, for far too long, our first freedom has fallen on deaf ears.

Judge Gorsuch opinion on the South Bay Pentcostal vs Gov of New York case.


John G. Roberts Jr., a pivotal conservative member in previous Supreme Court cases, sided with the 3 liberal judges in a stinging dissident opinion. He did not think that he and his colleagues were "not cutting the Constitution loose during a crisis, nor (that they were) sheltering in place when the Constitution is under attack...They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution". They believed that the state had the constitutional right and responsibility to regulate gatherings during a public health crisis, including religious gatherings.


This case and the decision taken illustrate the politization of the Supreme Court with its majority ruling, despite its constitutionally non-political dimension. It is not really the disproportionate nature of Cuomo's order that was ruled on by the Supreme Court last November. It is the prevalence of the FIrst Amendment on the rest of the Constitution, to the point of delegitimizing the actions taken by the authories within a rule of law, responsible for public order, all the more so during a public health crisis.


This libertarian bias, the result of a long redirection coming from conservatism, giving more value to religious freedom over a country that has become hostile or nonchalant within its own limits, is bad news. It transforms religious freedom into an ideological weapon, on the basis of a preconception of discrimination against the freedom of believers because they are believers. And this biased perception now denigrates a balanced read on rights and freedoms and their limits authorized by the Constitution and needed for public order.

Blandine Chelini-Pont is a Professor of Contemporary History at the Université d'Aix-Marseille, member of LID2MS (Aix-Marseille) and associated with GSRL-EPHE-Université PSL. Her research focuses on religion, politics and the law in the United States.