Supreme Court Strikes Down New Jersey, Colorado Church Capacity Limits

The Supreme Court is seen in Washington on Nov. 5, 2020. J. Scott Applewhite/AP Photo

The Supreme Court struck down pandemic-related limits on attendance at houses of worship in New Jersey and Colorado in two separate lawsuits on Dec. 15.

The ruling in Robinson v. Murphy was unanimous; Phil Murphy, a Democrat, is the governor of New Jersey.

Lawyers for the petitioners, a Roman Catholic priest, Kevin Robinson, and an Orthodox Jewish rabbi, Yisrael Knopfler, described the ruling as “a huge victory for religious freedom” in a statement.

The court granted the petition and judgment at the same time without hearing oral argument, sending the case back to the 3rd Circuit Court of Appeals “with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo,” the Supreme Court’s landmark Nov. 25 ruling that blocked New York Gov. Andrew Cuomo, a Democrat, from enforcing restrictions on attendance at houses of worship in an effort to combat the spread of the CCP virus, which causes the disease COVID-19.

The ruling held that houses of worship can’t be treated more harshly than functionally comparable secular entities such as schools, warehouses, factories, and large stores. Murphy’s order had limited attendance at houses of worship to 25 percent, while secular businesses and schools were at 100 percent capacity.

“This is one of dozens of lawsuits across the country pitting houses of worship, their leaders, and congregants against gubernatorial abuse of power,” said Christopher Ferrara, special counsel with the Thomas More Society, which represented the petitioners in the New Jersey appeal.

“This order shows that the Supreme Court is truly interested in ensuring churches get equal treatment with secular activities, even if the Governor Murphy’s edicts are not nearly as ‘severe’ as New York’s 10- and 25-person limits on houses of worship in Governor Cuomo’s ‘Red Zone’ or California’s total ban on indoor worship in Governor [Gavin] Newsom’s ‘Purple Tier.’

“Under Murphy’s executive orders in New Jersey, houses of worship are limited to 25 percent capacity, while Costco, Walmart, factories, schools, and other venues, all get better treatment. What is particularly significant in this case is that the high court is not only recognizing the error of outright bans or virtual bans on houses of worship, which were at issue in Roman Catholic Diocese of Brooklyn v. Cuomo in New York and Harvest Rock v. Newsom in California, but also acknowledges the disparately applied capacity percentage limits also violate the Free Exercise clause.”

A spokesman for the New Jersey attorney general’s office said, “In our brief in opposition, we specifically asked for this exact order and included reasons why.” He noted that State Solicitor Jeremy Michael Feigenbaum, counsel of record for Murphy, had previously filed a brief with the court, in light of the Cuomo ruling.

In the other case, High Plains Harvest Church v. Polis, the vote by the justices was 6–3. Jared Polis, a Democrat, is the governor of Colorado.

As in the New Jersey ruling, the court granted the church’s petition and judgment at the same time, sending the case back to the 10th Circuit Court of Appeals on remand.

Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor dissented from the order because in their view, “this case is moot” in that “Colorado has lifted all those limits ... [and] there is no reason to think Colorado will reverse course.”

The Supreme Court didn’t explain the reasoning it employed in arriving at the two decisions.

But Ferrara added: “We are getting a very clear message from the United States Supreme Court that government cannot set up any rules that apply to places of worship, or worship activities, but not to other, comparable secular activities. This is the very crux of religious discrimination and a blatant abuse of the United States Constitution and its Amendments.”

Assistant U.S. Attorney General for the Civil Rights Division, Eric S. Dreiband, praised the Colorado ruling, saying it “and other recent decisions make abundantly clear that religious liberty is not a second-class right. There is no pandemic exception to the United States Constitution and its Bill of Rights.

“Colorado’s decision to treat religion and houses of worship less favorably than marijuana dispensaries, laundromats, and other nonreligious activities is illegal and suggests a lack of respect or understanding about our Constitution.”