Supreme Court Blocks Colorado Governor’s Lockdown Orders Limiting Church Attendance

National   |   Steven Ertelt   |   Dec 15, 2020   |   12:35PM   |   Washington, DC

After striking down lockdown orders limiting church attendance in California and New York, the Supreme Court has struck down another order — this time in the state of Colorado.

The Supreme Court on Tuesday ruled in favor of a rural Colorado church challenging capacity limits instituted by the state’s pro-abortion Democratic Gov. Jared Polis. High Plains Harvest Church sought to block the restrictions, arguing that the state’s rules unlawfully targeted Christians and churches. The order limited attendance to 25% of a typical occupancy — which would prohibit all but a handful of people at small churches — and had an upper limit of 50 people.

In a brief unsigned order, the Supreme Court reversed lower court rulings that had refused to block the restrictions. Justice Elena Kagan, joined by fellow liberals Justices Stephen Breyer and Sonia Sotomayor, dissented from the court’s order.

Attorneys for the church praised the Supreme Court ruling.

“Today in Colorado it is perfectly legal for hundreds of shoppers to pack themselves cheek by jowl into a Lowes or other big box store or patronize any one of the thousands of other retail establishments that are not subject to draconian numerical limits,” wrote Barry Arrington, an attorney for the church.

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“But if 51 people were to meet to worship God in a small rural church in Ault, Colorado, they would do so at the risk of being fined and imprisoned,” Arrington wrote.

Senator Ben Sasse, a member of the Senate Judiciary Committee, issued the following statement after the Supreme Court ruled in favor of a Colorado church.

“The Supreme Court has smacked down another ham-fisted restriction specifically targeting religious liberty. We’ve seen this again and again and the answer is the same: a pandemic cannot rewrite the Constitution. The First Amendment is what America is all about and a public health crisis isn’t going to undermine religious liberty.”

In a huge late-night victory for the religious liberty of Christians and Americans of faith nationwide, the Supreme Court prohibited last month Governor Andrew Cuomo from enforcing his lockdown order limiting the number of people who can attend church or synagogue at any given time.

Just before midnight on the eve of Thanksgiving the Supreme Court stopped Governor Cuomo from imposing discriminatory 10- and 25-person caps on synagogues and churches. The Court agreed that the Governor’s “rules can be viewed as targeting the ‘ultra-Orthodox [Jewish] community,’” and violate the First Amendment by treating religious exercise worse than secular activities.

The justices split 5-4 with new Justice Amy Coney Barrett in the majority in favor of religious freedoms without government interference — making her first Supreme Court vote a huge one.

Earlier this year, when Barrett’s liberal predecessor, Justice Ruth Bader Ginsburg, was still on the court, the justices left in place onerous lockdown provisions in Nevada.

In its opinion, the Supreme Court said that, “…even in a pandemic, the Constitution cannot be put away and forgotten.  The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

The Justices also emphasized that “there is no evidence that the applicants have contributed to the spread of COVID-19,” and, to the contrary, that they “have admirable safety records.” Moreover, the Court explained that “there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” including tying maximum attendance to the size of a synagogue or church.

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Agudath Israel of America, a 98-year-old Orthodox Jewish umbrella group headquartered in New York City, succeeded in its first-ever lawsuit to go to the Supreme Court. Its attorneys with the Becket Fund asked the Supreme Court for emergency protection on behalf of Agudath Israel and affiliated synagogues as part of an ongoing lawsuit against Governor Cuomo’s restrictions on their right to worship – which were abruptly declared just 48 hours before a trio of sacred Jewish holidays, Hoshanah Rabbah, Shmini Atzeres, and Simchas Torah. The Catholic Diocese of Brooklyn brought a parallel case challenging the restrictions.

The Catholic Diocese of Brooklyn, which covers Brooklyn and Queens, was also a party to the suit and argued houses of worship were being unfairly singled out by the governor’s executive order.

“We are extremely grateful that the Supreme Court has acted so swiftly and decisively to protect one of our most fundamental constitutional rights — the free exercise of religion,” said Randy Mastro, an attorney for the diocese, in a statement.

“Governor Cuomo should have known that openly targeting Jews for a special COVID crackdown was never going to be constitutional,” said Eric Rassbach, vice president and senior counsel at Becket and counsel to the Jewish plaintiffs. “But treating synagogues and churches worse than the pet stores, liquor stores, and department stores also just didn’t make any sense, particularly when Agudath synagogues and Brooklyn parishes have carefully and responsibly followed the rules. The Supreme Court was right to step in and allow Jews and Catholics to worship as they have for centuries.”

New York had tried to avoid a Supreme Court ruling by changing its classifications while the application was pending at the Supreme Court. But the Justices rejected that cat-and-mouse game, finding that houses of worship “remain under a constant threat” that the Governor would reclassify them and “there may not be time for applicants to seek and obtain relief from this Court before another Sabbath passes.”

The dissenting justices argued that the Court did not need to decide the issue now because of New York’s recent rule change. Even these justices, however, emphasized the importance of protecting religious liberty during a pandemic. For example, Chief Justice Roberts noted that the restrictions “do seem unduly restrictive” and “may well … violate the Free Exercise Clause.”

“The Governor might reinstate the restrictions. But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic,” he wrote.

Justices Sotomayor and Kagan agreed that “Free religious exercise is one of our most treasured and jealously guarded constitutional rights” and that “States may not discriminate against religious worship” even in times of crisis.

The injunctions issued by the Court will remain in place while the appeal continues at the Second Circuit and the Supreme Court.