unrecognizable prayers on pews during mass in catholic cathedral

Maximizing Capacity Under the Free Exercise Clause: How Roman Catholic Diocese of Brooklyn v. Cuomo has Influenced Subsequent Case Law

Post Authored By: Kenny Matuszeski and Michael Beltran

Roman Catholic Diocese of Brooklyn v. Cuomo, 208 L. Ed. 206 (2020) enjoined Governor Cuomo’s Executive Order 202.68 (“Executive Order”), which restricted the maximum number of people in houses of worship in certain zones to only 10 or 25 people. Id. The Supreme Court held that the capacity limits on houses of worship did not meet strict scrutiny, because certain types of businesses considered essential businesses, including acupuncture facilities, campgrounds, garages and microelectronics plants were allowed to admit as many people as they wished. Id. at 208. This article discusses events in the wake of the Supreme Court’s ruling.

The Supreme Court enjoined the Executive Order until disposition of the appeal in the Second Circuit and any petition for writ of certiorari. Id. at 207. On December 28, 2020, the Second Circuit reversed the district court’s order and remanded the case back to the district court. Agudath Isr v. Cuomo, 2020 U.S. App. LEXIS 40417, at *2 (2nd Cir. Dec. 28, 2020). Upon remanding the case to the district court, the Second Circuit directed the district court to issue a preliminary injunction prohibiting enforcement of the Executive Order’s 10- and 25-person capacity limits. Id. Further, the Second Circuit required the district court to determine whether the Executive Order’s 25% and 33% capacity limits should be enjoined in light these rulings. Id.

After issuing the Roman Catholic Diocese of Brooklyn decision, the Supreme Court remanded several other related cases to the lower courts. See High Plains Harvest Church v. Polis, 2020 WL 7345850 (U.S. Dec. 15, 2020) (remanding the case to the Tenth Circuit with additional instructions to remand to the District of Colorado for further consideration in light of Roman Catholic Diocese of Brooklyn); see also Robinson v. Murphy, 2020 WL 7346601 (U.S. Dec. 15, 2020) (vacating the District of New Jersey’s October 2, 2020 order, and remanding to the Third Circuit with additional instructions to remand to the District of New Jersey for further consideration in light of Roman Catholic Diocese of Brooklyn).

Recently, the Sixth Circuit cited Roman Catholic Diocese of Brooklyn when it analyzed whether parochial schools were treated less favorably than “comparable secular facilities” after a resolution closed every school in a particular county. Monclova Christian Acad. v. Toledo-Lucas Health Dep’t., 2020 U.S. App. LEXIS 40856, at *6 (6th Cir. Dec. 31, 2020) (quoting Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 66). The Sixth Circuit held that its analysis could not be limited by solely focusing on both the specific provision at issue and the secular actors affected by that provision. Id. at *8 (“The Free Exercise Clause . . . . [T]ranscends the bounds between particular ordinances, statutes, and decrees.”). Otherwise, the government would be able to avoid the guarantee of equal treatment under the Free Exercise Clause. Id. at **8-9.

The Sixth Circuit focused on “whether the ‘government, in pursuit of legitimate interests,’ . . . imposed greater burdens on religious conduct than on analogous secular conduct.” Id. at *10 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543). Gyms, tanning salons, office buildings and a casino remained open in the county, while the plaintiffs’ schools remained closed. Id. Under Roman Catholic Diocese of Brooklyn, these secular facilities were directly comparable to schools with regard to the spread of COVID-19. Id. (citing Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 66). Because the resolution’s restrictions “impose[d] greater burdens on the plaintiffs’ conduct than on secular conduct,” Id., the Sixth Circuit held that the defendant’s decision to close the plaintiffs’ parochial schools was subject to strict scrutiny. Id. at *11 (citing Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 67).

Because the defendant’s actions could not survive strict scrutiny, closing the plaintiffs’ parochial schools violated the Free Exercise clause. Id. Because preliminary injunctions for constitutional violations turn on the likelihood of success on the merits factor, the Sixth Circuit also granted the plaintiffs’ motion for an injunction pending appeal. Id.

Notwithstanding the foregoing, the Supreme Court has also upheld limitations on the exercise of religion since the Roman Catholic Diocese of Brooklyn decision. See Danville Christian Academy, Inc., et al. v. Beshear, 592 U.S. __ (Dec. 17, 2020) (denying an application to vacate the Sixth Circuit’s stay of the district court’s preliminary injunction to enforce an Executive Order closing all public and private—including religious—schools without prejudice, due to the pending expiration of the Executive Order). The Massachusetts Supreme Judicial Court has followed suit. Desrosiers v. Governor, 486 Mass. 369 (Dec. 10, 2020) (holding that the state’s emergency orders were narrowly tailored, because reducing the number of people who could gather together was not substantially broader than necessary to achieve the government’s interest of reducing COVID-19 spread, and because virtual communications were available as an alternative). Lower federal courts have similarly followed suit. Harvest Rock Church v. Newsom, 20-55907, 2020 WL 7075072 (C.D. Cal. Dec. 21, 2020) (denying injunctive relief under the Free Exercise Clause because California did not place numerical limits on worship, the same rules applied to restaurants and theaters, and indoor and outdoor religious activities were less stringently regulated than other social gatherings).

About the Authors:

Kenneth “Kenny” Matuszewski, CIPP/US is a registered Patent Attorney who provides advice about utility patents, design patents, data privacy, and cybersecurity. He also has extensive experience litigating software, electrical and mechanical patents in federal court and the Patent Trial and Appeal Board. Representative technologies he has worked with include electronic games, blockchain, cancer treatments, drones, SIM cards, microphones, electronic banking, and gene therapies. 

A firm believer that learning is a lifelong process, Kenny graduated with a B.S. in Computer Science from Oregon State University in 2019. Previously, he double-majored in Biological Sciences and Spanish at the University of Notre Dame and earned his J.D. at Chicago-Kent College of Law. He also received the YLS’ Rising Star Award for Leaders with Exceptional Promise in 2019, the 2020 David C. Hilliard Award for Outstanding Committee Service, and the 2020 Impact Award for a Leader with Substantial Impact on the Section. 

Michael Beltran is a member of the Florida House of Representatives, representing District 57. He graduated magna cum laude from the University of Pennsylvania with a B.A. in 2005, and later graduated from Harvard Law School with a J.D. in 2008 and moved to Florida in 2010. In addition to serving in the House of Representatives, Michael has been a litigator for more than a decade. A former undefeated light heavyweight wrestler from Brooklyn, Michael has worked for several of the world’s largest law firms and served as a Judicial Law Clerk for the Hon. Steven D. Merryday in the Middle District of Florida.

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