How an LGBTQ+ Rights Case Could Affect the Response to COVID-19
Here’s a thought experiment. Imagine for a moment that it was last term, rather than this term, when the U.S. Supreme Court heard Fulton v. Philadelphia, the case involving religious foster-care agencies who refused to place children with same-sex parents. Imagine, too, that the justices accepted the Fulton plaintiffs’ invitation to overrule Employment Division v. Smith, the controversial precedent limiting the availability of religious exemptions. And imagine that in overturning Smith, the Court replaced it with something not unlike the standard of the federal and state Religious Freedom Restoration Acts (RFRAs). Those statutes permit governments to impose substantial burdens on a citizen’s religious exercise only if the government has a compelling interest and has adopted the least restrictive means.
Now imagine the COVID-19 pandemic still struck. The consequences of overruling Smith would have been far-reaching, likely limiting the effectiveness of public health regulations designed to curtail the spread of the virus.
In the past twelve months, religious organizations have filed dozens of lawsuits seeking to overturn state and local regulations that restrict worship and other religious activities. The Supreme Court has issued orders in seven of these suits, all on its “shadow docket,” meaning the justices did not have the benefit of full briefing and oral argument. When the late Justice Ruth Bader Ginsburg was on the Court, narrow majorities including Chief Justice John Roberts upheld restrictions on religious activities in California and Nevada. With Justice Amy Coney Barrett now on the bench and the Court’s center of gravity having shifted, in recent months the justices struck down restrictions in New York and California and sent challenges to regulations in Colorado and New Jersey back to lower courts for reconsideration.
What would have happened in these cases had Smith not been the controlling precedent where religious exemptions are concerned? To answer this question, it’s necessary to understand the backdrop against which Smith was decided, what the Court held in that case, and how Smith interacts with the federal and state RFRAs.
Sherbert, Smith, and the RFRA Statutes
The short answer is that without Smith on the books, courts would need to consider how challenged laws or regulations affect individual litigants’ religious practices on a case-by-case basis. Even if it had promulgated a generally applicable rule, the government would bear the burden of demonstrating that it had no other way to achieve its goals than to apply a regulation to a specific party whose religious exercise is burdened.
As commentators have widely noted, Smith represented the culmination of a series of decisions narrowing the availability of religious exemptions. In 1963, the Court held in Sherbert v. Verner that a Seventh-Day Adventist who had been fired for refusing to work on Saturday, her Sabbath day, ought to be exempted from penalties under state unemployment compensation laws. But subsequent decisions limited the reach of Sherbert, and in Smith, decided in 1990, a 6–3 majority held that neutral, generally applicable laws bind all citizens, notwithstanding any burden on individuals’ religious exercise. The bipartisan furor that followed Justice Antonin Scalia’s majority opinion in Smith led to the adoption of the federal RFRA, which was introduced by then-Rep. Chuck Schumer (D-NY) and the late Sen. Edward Kennedy (D-MA). In 1993, RFRA passed unanimously in the House and 97–3 in the Senate. When the Supreme Court decided in 1997 that RFRA applied only to the federal government, states began adopting their own versions of the statute. As of this writing, twenty-one states have enacted RFRA laws, and in others, high courts have interpreted state constitutions to contain RFRA-like protections.
So how do Smith and the RFRA statutes apply to regulations adopted to combat COVID-19?
The analysis begins by asking whether a challenged regulation singles out one or more religious practices for unfavorable treatment. If the regulation is not neutral, Smith does not apply and the regulation is subject to strict scrutiny under the Free Exercise Clause. In 1993, the year the federal RFRA was enacted, the Court held in Church of Lukumi Babalu Aye v. City of Hialeah that a local ordinance that targeted practices associated with Santería failed strict scrutiny. As the saying goes, strict scrutiny is “strict in theory, fatal in fact,” because it is a rare case in which the government can show that burdening religious practices, but not comparable secular practices, furthers a compelling interest and is the most narrowly tailored means of doing so.
In litigation concerning COVID-19 restrictions, religious plaintiffs have most often made arguments drawing on Lukumi — that is, they have argued that pandemic-era restrictions treat them disfavorably. But disfavorably in comparison to what other institutions? Judges have differed with regard to which secular venues are suitable comparisons for houses of worship. At the Supreme Court, the justices who have voted to strike down restrictions on religious institutions have stressed that the challenged regulations treat “hardware stores, acupuncturists, and liquor stores,” as well as “bowling alleys, breweries, fitness facilities, and casinos,” more leniently than synagogues, churches, and mosques. The justices on the other side have argued instead that the proper comparators for houses of worship are “lectures, concerts, movie showings, spectator sports, and theatrical performances.” In Brooklyn Diocese v. Cuomo, Justice Sonia Sotomayor noted that New York’s regulations actually treated these kinds of venues, “where large groups of people gather in close proximity for extended periods of time,” less favorably than religious institutions.
In jurisdictions without RFRA-style protections on the books, whether a regulation treats religious practice disfavorably is practically dispositive. If the regulation does not treat religious and comparable non-religious activities neutrally, then it is subject to, and usually fails, strict scrutiny. If the regulation is neutral, then under Smith it is constitutional even though it may substantially burden many people’s religious practices.
But where the RFRA standard is in place, the case does not end there. Courts must ask an additional set of questions — importantly, not about a regulation in general but about its effects on a particular plaintiff. If the plaintiff sincerely asserts that the regulation substantially burdens its religious exercise, then the government must show both that it has a compelling interest in applying the regulation to this particular plaintiff, and that applying the regulation to that plaintiff is the least restrictive means of furthering its interest. The Court has rightly called the plaintiff-specific RFRA inquiry “the most demanding test known to constitutional law.”
It is telling that only one of the COVID-era cases in which the Supreme Court has ruled has come from a state with a RFRA in place. California, Colorado, Nevada, New Jersey, and New York do not have RFRAs on their statute books. Kentucky does, but when the Court decided Danville Christian Academy v. Beshear, a challenge to the governor’s order closing K-12 schools through the Christmas holidays, it relied on other grounds for declining to grant a preliminary injunction (the challenged regulation was to expire the day after the Court handed down its decision). And Danville Christian Academy did not raise RFRA arguments in its briefing, concentrating instead on showing that the governor’s order was not neutral and that it interfered with parents’ right to educate their children.
But earlier in the pandemic, a different Kentucky litigant, Maryville Baptist Church, won a temporary restraining order from the Sixth Circuit on RFRA grounds. And just before Easter, a federal judge in the District of Columbia entered a preliminary injunction against the city under both the Free Exercise Clause and the federal RFRA (which applies directly to the District). Allowing the Roman Catholic Archdiocese of Washington to host more than 250 worshippers in its largest churches, including the giant Basilica of the Shrine of the Immaculate Conception, Judge Trevor McFadden noted in passing that “the compelling interest inquiry under RFRA would likely be more searching,” and harder for D.C. to overcome, than its counterpart under the First Amendment.
A World Without Smith
With all of this on the table, let’s return to our initial thought experiment. If prior to the pandemic the Court had overruled Smith, it more likely than not would have constitutionalized something like the RFRA standard. As we have seen, because Smith replaced the RFRA-like standard of Sherbert, overruling Smith — even without explicitly promulgating a new standard — would have had the practical effect of restoring the approach of Sherbert and its progeny.
Constitutionalizing RFRA would have changed the results in some key COVID-era cases, as well as incentivized far greater numbers of religious litigants to challenge state and local public health regulations.
Prior to Justice Ginsburg’s death, slim majorities upheld California and Nevada’s COVID regulations because the justices found them to be neutral for Free Exercise Clause purposes. In these cases, Calvary Chapel and the first South Bay decision, the RFRA standard would have required more of the states. They would have needed to show that they could combat the pandemic by no means less restrictive than limiting the religious exercise of particular plaintiffs. The states would likely have argued that the success of their COVID regulations depended on their being universally followed. If any group — religious or otherwise — were allowed to congregate in greater numbers or at closer distance, the states would have reasoned, the virus would have spread faster and further. The states would also have argued that they lacked the resources to police compliance with medical guidelines on a case-by-case basis and therefore needed to impose broad restrictions in order to fight the pandemic.
Many religious litigants would have been able to make quite persuasive rejoinders. The Nevada regulations challenged in Calvary Chapel, for instance, set a cap of 50 people for all houses of worship. A synagogue built to host 1,000 congregants could easily have prevailed on the least-restrictive-means component of its RFRA claim by demonstrating that it could host many more than 50 people while still complying with public health officials’ guidelines. A large church, likewise, might have prevailed had it agreed to curtail or even pause congregational singing, a known vector for the transmission of SARS-CoV-2, while still safely hosting larger numbers of worshipers in its sanctuary.
Adjudicating these claims would have required courts to delve into the specific situations of individual plaintiffs. To determine whether a challenged regulation is indeed the least restrictive means of protecting against COVID as applied to a particular house of worship, the court would have needed to assess the size of the facility, the measures the congregation had taken to prevent the spread of the virus, and the nature of the practices in which members wish to engage. In the recent decision concerning Washington’s Catholic archdiocese, the court considered precisely these factors, noting the size of many of the archdiocese’s churches, its “rigorous social distancing and hygiene measures,” and the importance in the Catholic tradition of attending Mass and receiving Communion in person, especially at Easter.
Some might wonder whether these sorts of inquiries, even if they benefit religious plaintiffs, entail the kind of “excessive entanglement” with religion that courts have found unconstitutional in other contexts. It is difficult, however, to imagine how a court could assess a RFRA challenge in any other way. And RFRA suits are distinguishable from the classic entanglement cases inasmuch as these claims are brought by religious institutions themselves.
So it is likely that a nationwide, constitutionalized RFRA standard would have resulted in courts granting more exceptions to public health regulations. State and local officials worried about legal challenges might well have issued fewer or less stringent regulations, or might have reached compromises with religious institutions, as happened early in the pandemic in Kansas, a state with a strong RFRA. And in those cases where religious litigants prevailed under the Free Exercise Clause, a constitutionalized RFRA standard would have made those decisions easier calls. For instance, even if the majority of the Supreme Court had found that the regulations in Brooklyn Diocese and the second South Bay decision were neutral, the states would still have had to demonstrate they needed to apply their regulations to the specific churches and synagogues that sued.
Consider one more wrinkle as well. In recent years, the Court has afforded RFRA’s protections to litigants beyond houses of worship. In Burwell v. Hobby Lobby Stores, for instance, a 5-4 majority held that in enacting RFRA, Congress intended to protect the religious freedom not only of individuals and religious organizations, but also of closely held corporations whose owners seek to exercise their religious liberty in the ways they manage their businesses.
Could such enterprises also invoke RFRA’s protections to obtain exemptions from pandemic-era regulations? So far, there do not appear to be any reported cases of this variety; that is, RFRA challenges to public health restrictions in the era of COVID have been brought only by religious institutions and a small number of incarcerated persons (including two prisoners condemned to death). But if a closely held corporation requested an exemption in order to accommodate a sincere religious practice, it would be difficult to imagine why the kind of analysis I have been outlining would not also apply.
And what about an individual who brings a RFRA challenge to a measure such as a statewide mask mandate, arguing that her religious beliefs require her not to cover her face? The government would likely mount an effective reply here. The individual’s behavior would almost certainly increase the risk of COVID infections, unlike the operation of a religious institution or even a religiously motivated business that implemented safeguards to protect congregants’ or customers’ health. And while it would burden state resources to assess whether institutions threatened public health on a case-by-case basis, it would be all but impossible for states to make such inquiries about individuals.
What Next for Smith?
This article’s thought experiment has, I hope, demonstrated the enduring value of Smith. Especially where actions motivated by religion pose the risk of harm to third parties, it still seems the wiser course of action not to grant exemptions from laws that burden religion incidentally, even if significantly. Without Smith, it would have been more difficult during the pandemic for public health officials in some states to institute effective regulations limiting the spread of the virus and thereby saving lives.
The litigation arising from the first year of the pandemic shows that if Smith were to be overturned, the Supreme Court ought replace it with some new, compromise test that would limit the availability of exemptions when religious exercise threatens the rights of others. Such a test would have the virtue of addressing many of our current moment’s most intractable legal conflicts, such as the tensions between some religious believers and the civil rights of LGBTQ+ individuals and families. The Court has these matters squarely before it in Fulton v. City of Philadelphia. The decision, expected later this term, may well affect more than the rights of same-sex couples and religious foster care agencies. It may also curtail the work of public health officials as the COVID-19 pandemic continues into its second year. ♦
Patrick Hornbeck is professor of theology at Fordham University, where he is also a J.D. student in the School of Law. A historian of Christianity who presently works at the intersection of U.S. religion and law, Hornbeck is author or editor of eight scholarly books, most recently Remembering Wolsey: A History of Commemorations and Representations (Fordham University Press, 2019).
Hornbeck, Patrick. “How an LGBTQ+ Rights Case Could Affect the Response to COVID-19.” Canopy Forum, April 14, 2021. https://canopyforum.org/2021/04/14/how-an-lgbtq-rights-case-could-affect-the-response-to-covid-19/