Part 1: Religious Freedom | COVID and the Catholic Church

Part 1 will be available as a podcast on October 25, 2023. Be sure to subscribe to CatholicVote’s the LOOP for future installations of this six-part series.

Part 1. THE CHURCH’S FIGHT FOR RELIGIOUS FREEDOM

In May 2023 –  shortly after the Covid-19 pandemic ceased to be an official “national emergency” under federal law –  Supreme Court Justice Neil Gorsuch reflected on what had been done in the name of that emergency. 

“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” wrote the justice. 

Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too.

They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct. They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent. (emphasis added)

The color-coded zones, emergency timetables, and suspicious last-minute color change were all part of a case the Supreme Court had decided in November 2020. The case pitted the Catholic Diocese of Brooklyn against Governor Andrew Cuomo, over severe and discriminatory pandemic restrictions in his Executive Order 202.68. 

The diocese won a historic victory in this case – which was the first successful Supreme Court challenge to pandemic measures on religious freedom grounds, and paved the way for further victories at the high court by other religious groups in 2021.  

Such a lawsuit would not necessarily have appeared likely in the first months of the Covid-19 pandemic, however. 

On the contrary, the American bishops’ suspension of public worship had originally been voluntary, and the issue did not cause tensions with political authorities at first. 

During this early period of grave concern and uncertainty – when even the Trump administration issued national lockdown guidelines – Catholic bishops uniformly suspended the public celebration of Mass throughout the US “for the safety of all.” Exact closure dates varied, but public worship was suspended nationwide by March 23, 2020.  

Exact closure dates varied, but public worship was suspended nationwide by March 23, 2020.

At that time, much was unknown about the recently discovered SARS-CoV-2 virus and the disease caused by it (“Covid-19” in the proper sense, although that name now popularly refers to both the virus and the disease). In particular, it was not clear how deadly the disease was: alarming initial reports were circulating about high death rates among confirmed cases, but there was not sufficient clarity about how many people were actually being infected and recovering. 

A vast majority of the country – 43 states, including the likes of Texas and Florida – had some form of stay-at-home order imposed by civil authorities during March and April of 2020.  

The US bishops followed the same cautious approach during this early period. Generally speaking, the complete closure of Catholic churches in 2020 lasted about two months.

To their credit, Church leaders worked fairly quickly – given the many unknowns of the pandemic’s early days – to reopen public worship. The chairman of the US bishops’ worship committee sent out memos on April 30 and May 14, referring local bishops to resources in which the Thomistic Institute and the Catholic Medical Association gave advice on how to safely resume the Mass and other sacraments while seeking to limit the spread of Covid-19. 

In most dioceses, public Masses resumed during May, although a handful of bishops – in Fairbanks, Alaska; Great Falls-Billings and Helena, Montana; and Las Cruces, New Mexico – had reopened for worship in April. On the other hand, nearly 40 dioceses (of the country’s total 195) had no public Mass until June, the latest reopening being on June 21 in Newark, NJ. 

Closing churches was a dramatic move, especially since it led to public celebrations of Holy Week and Easter being canceled (as they likewise were at the Vatican and elsewhere). However, this initial period of voluntary closure was apparently not controversial among the bishops. 

For instance, the move was strongly backed by Archbishop William Lori, the US bishops’ leading voice on religious liberty for several years, in an April 2020 interview. 

Likewise, even the famously outspoken Bishop Joseph Strickland suspended public Mass on March 18, and said in April that “we must continue to remain isolated and do our part to slow the spread of this terrible disease.” 

After reopening public worship on May 1, Bishop Strickland supported masks and social distancing (both of which had been endorsed by the Thomistic Institute and Catholic Medical Association), and he had only moderate misgivings about the voluntary church closures, saying:

I think we could have been just as effective with mitigation efforts and maintaining a partially opened status … I don’t regret the decision I made; I was acting on the best information I had.

As 2020 went on, however, some religious leaders grew frustrated and began filing lawsuits over government-imposed pandemic restrictions they saw as discriminatory. 

Although the Catholic Church was not initially part of this trend, it would later play a central role in successfully litigating the issue. 

In late May and July of 2020 (prior to Justice Amy Coney Barrett’s appointment), the Supreme Court had considered and narrowly declined applications for relief from Protestant groups in California and Nevada.

Dissenting in the Nevada case, Justice Alito wrote these memorable lines in July of 2020: 

The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services. A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy—and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

Likewise, Justice Kavanaugh had made his objection clear when five justices denied relief in the May 2020 California case. 

“In response to the COVID–19 health crisis,” Kavanaugh wrote, “California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries … The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.” (emphasis added)

“The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.” – Brett Kavanagh

In both of these earlier cases, four justices – Thomas, Alito, Gorsuch, and Kavanaugh – would have granted the religious groups’ application for relief. However, with the death of the “notorious” liberal Justice Ginsburg in September 2020 and the confirmation of Justice Amy Coney Barrett in October, the court’s majority shifted away from deference to public health orders and toward the application of the Constitution’s Free Exercise of Religion clause. 

This shift toward religious liberty began with the case brought by the Catholic Diocese of Brooklyn in November 2020. 

New York City was at the center of the pandemic early on, with over 16,000 deaths in the city (and more than 26,000 in the state as a whole) in the first eight months of the crisis, according to a filing by the State of New York in the US Supreme Court. Amid concerns over hospital capacity, Governor Cuomo imposed a severe lockdown in March. That month, the governor banned “all non-essential gatherings of any size for any reason,” including religious services, although these were not singled out but simply fell under the blanket ban. 

The Archdiocese of New York and the Diocese of Brooklyn (which together cover New York City’s five boroughs) complied with this initial lockdown order, suspending public worship in March and not beginning to reopen until the last week of May 2020. As the State later explained to the Supreme Court, the resumption of nearly all group activities was gradual: “Under the reopening plan, the State is divided into geographic regions, and as each region attains certain statistical benchmarks concerning COVID-19 containment it advances through four ‘phases’ in which increasingly more activities are allowed to resume, so long as social distancing and other health protocols are followed.”

In October, however, New York’s health department became concerned over geographical “clusters” with higher infection rates. This led to a “Cluster Action Initiative” that Cuomo acknowledged would be “most impactful on houses of worship,” which he blamed for the cluster problem. 

Under the new order, attendance at worship services – now directly singled out as such – would be capped at 10 people in “red zones” and 25 in “orange,” regardless of building capacity or other factors. Meanwhile, all businesses Cuomo deemed “essential” would have no capacity limits even in red areas, and most “non-essential” businesses would have no limits in orange locations. 

“This is a fear driven response … [T]his is not a policy being written by a scalpel, this is a policy being cut by a hatchet” – Governor Andrew Cuomo

Shortly after this announcement, a recording emerged of the governor speaking to a group of Jewish leaders (who had their own concerns over the plan) with almost incredible frankness. Cuomo himself was recorded telling them that the cluster plan was “not a highly nuanced, sophisticated response. This is a fear driven response … [T]his is not a policy being written by a scalpel, this is a policy being cut by a hatchet … very blunt … It’s not the best way to do it, but … [if] we can get the numbers down in the zip codes, the anxiety comes down, and we can have a smarter, more tailored approach … and then we can have a more intelligent, sophisticated policy.”

This admission was amazing insofar as Cuomo, a lawyer himself, was essentially describing the reason he would lose the case in the Supreme Court: his plan infringed on a fundamental constitutional right, without being narrowly tailored to achieve a compelling state purpose, thus failing the traditional test known as strict scrutiny. 

When the Brooklyn diocese sued Cuomo in federal court, shortly after the cluster policy announcement, one of its key exhibits was his own description of the policy – as blunt, fear-driven, and unsophisticated in its explicit targeting of religious congregations. 

The recording of Cuomo saying these words was released two weeks before the Senate’s October 26 confirmation of Justice Barrett. 

On November 12, the Brooklyn Diocese made an emergency application for relief to the Supreme Court. Their case was combined with one brought by an Orthodox Jewish group, with the Catholic diocese as the lead plaintiff. 

After a lightning-round of lengthy legal briefs, the diocese won in a 5-4 decision on November 25, 2020. 

Predictably, Cuomo’s targeting of worship services caused the judges to apply the standard of strict scrutiny – the legal doctrine Cuomo had essentially admitted to violating, when he acknowledged that he was burdening a fundamental right (religious free exercise) through a blunt and unsophisticated policy. The new restrictions on worship were blocked from taking effect.

“Not only is there no evidence that the applicants have contributed to the spread of COVID–19,” the Court wrote in its unsigned majority opinion, “but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services …It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.” 

“So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians.” – Neil Gorsuch

Justice Gorsuch offered a more fiery concurring opinion – noting that Governor Cuomo had limited worship spaces to 10 or 25 people regardless of any health precautions or other factors, while imposing “no capacity restrictions on certain businesses he considers ‘essential.’ And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”

Having won the lawsuit, Brooklyn’s Bishop Nicholas DiMarzio made essentially the same point, though in a more restrained manner. “Right now, we see this as a good decision, opening up the understanding that First Amendment rights are much more powerful than the right for somebody to shop,” Bishop DiMarzio told the Associated Press.

“It’s not anti-government,” he said, “but it is looking at the First Amendment that people have a right to worship when it’s possible.” 

The Supreme Court would subsequently uphold that right against other pandemic restrictions in three rulings against California Governor Gavin Newsom – South Bay United Pentecostal Church v. Newsom (February 2021), Harvest Rock Church v. Newsom (also in February), and Tandon v. Newsom (April 2021).

It is notable that Newsom and Cuomo – whose pandemic restrictions on religion were defeated in the Supreme Court – have both professed to be Catholic, while publicly betraying their faith in sometimes blatant ways. Simultaneously, at least four of the five justices who voted to block the governors’ policies on religious freedom grounds are also Catholics, of a rather different cast (Justices Thomas, Alito, Kavanaugh, and Barrett, with Gorsuch’s relationship to Catholicism being unclear). This contrast illustrates a key theme of the Catholic Accountability Project: at the heart of America’s cultural and political battles is the struggle over what it means to belong to the Church.

New York and California were certainly not the only states where religious liberty suffered under pandemic measures, and Brooklyn was not the only Catholic diocese to assert its rights against such restrictions. Although no other lawsuit by the Church advanced as far or had such impact as the Brooklyn Diocese case – and some disputes were addressed outside the court system – other Catholic bishops deserve an honorable mention for their advocacy of the Church’s freedom against overzealous politicians and bureaucrats. 

Some readers may be surprised to learn – given some of his public stances on other issues – that Washington, D.C.’s Cardinal Archbishop Wilton Gregory fought a months-long battle in federal court against District Mayor Muriel Bowser, over restrictions on worship similar to those at issue in the Brooklyn Diocese case. On November 23, 2020, two days before the Supreme Court ruled in that case, the District limited all worship services to 50 people regardless of buildings’ capacity, while allowing many secular institutions (such as restaurants and offices) to operate based on a percentage of their maximum occupancy.  

Mayor Bowser refused to withdraw this policy even after the Brooklyn Diocese decision blocked Cuomo from enforcing essentially similar restrictions. Partnering with the Becket Fund for Religious Liberty, Cardinal Gregory sued Mayor Bowser and the District. On December 11, they filed a lawsuit, which observed that “if the Archdiocese were to fill its churches with library books, washing machines, exercise bikes, restaurant tables, or shopping stalls instead of pews, the District would allow many more people to enter and remain for an unlimited amount of time.” 

“If the Archdiocese were to fill its churches with library books, washing machines, exercise bikes, restaurant tables, or shopping stalls instead of pews, the District would allow many more people to enter and remain for an unlimited amount of time.”

Cardinal Gregory’s legal complaint also noted that “half of the Archdiocese’s churches in the District can accommodate 500 or more worshippers,” including the National Shrine of the Immaculate Conception whose normal capacity is 10,000, “yet under the Mayor’s orders, all of these churches are subject to the same cap of 50 people.” 

Also to his credit, Cardinal Gregory did not drop his lawsuit even after the mayor issued a looser – but still problematic – version of the rules.  

On March 25, 2021 (the feast of the Annunciation), a Washington, D.C. federal judge applied the recent Brooklyn Diocese precedent and blocked Mayor Bowser’s restrictions on worship in the capital. “Although the District’s capacity restrictions are not as harsh as New York’s were, they still discriminate against houses of worship,” Judge Trevor McFadden noted in his opinion granting a preliminary injunction in favor of the archdiocese. This case was ultimately settled after Mayor Bowser was forced to back down from her Cuomo-style caps on worship attendance.  

Becket Fund President Mark Rienzi, who represented the Archbishop of Washington, D.C., made a key point when interviewed for a predictably slanted NPR story on lawsuits over public health orders. In Rienzi’s view, government officials actually undermine their own legitimate goals when they disrespect basic rights in the name of public health. 

“I honestly think the best way for them to preserve the ability to protect public health is to do it well, and to respect people’s rights while you do it,” Rienzi said.

Other cases of discrimination against churches were resolved outside the courts. In Madison, Wisconsin, Bishop Donald Hying made it clear to the mayor and county officials that he was willing to sue over similar discriminatory caps on congregation sizes that did not apply to secular businesses. Two days after a letter from his lawyers, the mayor and county executive changed course and allowed churches to reopen on equal footing with other establishments. 

More emphatically, Archbishop Bernard Hebda of Saint Paul and Minneapolis told Minnesota Governor Tim Walz that his parishes would not comply with a May 2020 executive order that allowed stores to open at half-capacity while limiting religious services to 10 people. Shortly after Archbishop Hebda made this announcement, the governor shifted gears and modified his order to permit a much larger number of congregants. 

In one way or another, all of these stories bear out the advice of attorney Randy Mastro, who led the legal team representing the Brooklyn Diocese before the Supreme Court. 

“Have the courage of your convictions,” Mastro told Catholic World Report in a December 2020 interview on the ruling. 

“We received three adverse rulings in the lower courts, and our client could have gotten discouraged by that and given up,” Mastro recalled. “But the Diocese was steadfast; it knew it was in the right and kept fighting all the way to the Supreme Court, and that perseverance paid off in a big way in the end.” 

Barring any dramatic reversal by a future left-leaning court, the Brooklyn Diocese case will stand as a precedent to stop similar discrimination against churches in a future pandemic. 

Part 2: Coming October 18, 2023 

About the Author: Benjamin Mann is a Byzantine Catholic and has written for several publications including Catholic News Agency, Catholic Exchange, and Real Clear Religion.

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