The Supreme Court of the United States (“SCOTUS”) has given States a deservedly tough run in recent months when it comes to the need for their COVID-19 restrictions to treat like alike. As the country’s highest judicial authority, it has – over the last year – handed down a total of five (5) decisions concerning the constitutionality of the limitations and their infringement of religious freedom.
This article will look at how SCOTUS’ approach has developed, and changed, over the course of these five cases.
The series of judgments:
In South Bay United Pentecostal Church v Gavin Newsom, Governor of California (the first case, brought at the start of the pandemic against California’s Governor, Gavin Newsom), the Court was unwilling to question the Governor’s exercise of executive authority which, by Executive Order, placed a 25% cap on religious gatherings but not on restaurants and shops. In its judgment dated 29 May 2020, the Court ruled in the State’s favour, denying the Church’s application for an interdict to prevent the State’s enforcement of the Executive Order.
The second case was that of Calvary Chapel Dayton Valley v Steve Sisolak, Governor of Nevada. In this case, the Governor of Nevada imposed a 50 person cap on religious services, but a 50% cap on casinos, bars and gyms. In an extraordinary single sentence judgment handed down on 24 July 2020, SCOTUS denied the Church’s application that Nevada’s COVID directives should treat the religious community in an equal manner to its treatment of commercial enterprises.
A turnaround in the Court’s deference to the Executive’s exercise of authority in the pandemic, finally came about towards the end of last year. In the landmark judgment of Roman Catholic Diocese of Brooklyn v Cuomo, handed down on 25 November 2020, the Court granted an order prohibiting New York Governor, Andrew Cuomo, from enforcing his COVID regulations on religious services. This was because Governor Cuomo’s restrictions had double standards, imposing severe restrictions on religious communities (permitting only 10 people to meet in a “red zone” and 25 people in an “orange zone”), without imposing similar restrictions on businesses. (See FOR SA’s article on the case here.)
The fourth case was again brought by South Bay United Pentecostal Church against California’s Governor Newsom. In the second case of South Bay United Pentecostal Church v Governor Newsom, Governor of California, wherein judgment was handed down on 5 February 2021, the Court this time granted the Church’s request to prevent Governor Newsom from enforcing the State’s total ban on indoor religious services. California was the only State in the USA to impose a total ban on indoor religious services, while at the same time allowing most retailers to operate with 25% indoor occupancy and other businesses to even operate at 50% occupancy or more. The Court found in the church’s favour, ruling that California was not allowed to prohibit indoor worship services. (See FOR SA’s article on the case here).
The most recent religious freedom v COVID-19 case to come before SCOTUS, is that of Ritesh Tandon v Gavin Newsom, Governor of California. In this case, where judgment was handed down on 9 April 2021, the Court told California’s health officials that they cannot enforce COVID-related restrictions that have the effect of limiting home-based religious worship, including Bible studies and prayer meetings.
A clear approach:
The Court in Tandon summarised the legal approach to be adopted (and questions to be considered by the Court) when dealing with a case where COVID restrictions limit the exercise of religious freedom, as follows:
- Firstly, whether the State’s restrictions are neutral and generally applicable (i.e. no double standards).
- Secondly, whether (in determining the existence of double standards) the activities are “comparable”, with the Court expressly stating that comparability is concerned with the risks various activities pose, not the reasons why people gather.
- Thirdly, the State has the burden of proving that its restrictions are as “narrowly tailored” as possible. (In South African law, the equivalent is that the State must use the least restrictive means possible to achieve its purpose).
- Fourthly, SCOTUS said that even if a State changes its COVID-19 restrictions while litigation is pending, that does not necessarily moot the case (i.e. where there is no longer any live debate for the court to decide, but merely academic arguments), because the party who instituted the case remains entitled to emergency interdictory relief where he/she/it remains under a constant threat of State officials using their power to reinstate the challenged restrictions.
Applicability to South Africa:
FOR SA has taken the South African Government to Court, challenging various restrictions imposed on the religious community by the Lockdown Regulations. (See FOR SA’s article on the case here). Many of the same arguments made before SCOTUS – the existence of double standards, which treat some sectors of society more favourably than the religious sector (even though the religious sector in SA has greater constitutional rights), etc. – apply to FOR SA’s case as well.
The Johannesburg High Court will soon hear the case and may, in terms of the Constitution, consider foreign law – such as the logic and legal reasoning SCOTUS has applied to the same problem in the USA. The logic and principles laid down by other countries’ judges, therefore, offer a valuable source of information to our judiciary.
The take-home is that the COVID-19 pandemic does not permit States to have “favourites”. If they choose to apply one set of rules to one sector of society, they need to use the same rules for every other sector – unless they can show that there are justifiable reasons to treat that sector differently, and that the restrictions imposed are the least restrictive ones at their disposal.
*Note: FOR SA has been representing the interests of between 11 and 18,5 million people from across the religious community of South Africa in our multiple engagements with Government to ensure that the Regulations and Directions issued under the national state of disaster are constitutionally valid and otherwise lawful.