Two houses of worship in New Jersey are asking the U.S. Supreme Court for an injunction against the state’s restrictions on religious services.
Under pandemic guidelines enacted by Gov. Phil Murphy, the state limits indoor worship services to the lesser of 150 people or 25% of the building’s maximum occupancy (but never fewer than 10 people).
But a lawsuit filed by the Thomas More Society, a public-interest law firm focusing on religious liberties, on behalf of a North Caldwell priest and a Lakewood rabbi, argues that these limits are unconstitutional, since the state permits various secular gatherings, such as at businesses and schools, at either 100% or 50% of occupancy, without numerical limit.
“If social distancing, proper hygiene practices, and other health and safety protocols are sufficient to allow numerous secular gatherings above 25% of capacity, they are good enough for … religious gatherings, too,” the suit says.
The state had argued that gatherings at houses of worship were more appropriately comparable to those at theaters and concert halls, which face even more-severe restrictions, and that religious gatherings therefore are actually being given favorable treatment. The federal district court had accepted this argument in ruling against the houses of worship. The plaintiffs are appealing to the U.S. Court of Appeals for the Third Circuit, and sought an injunction pending that appeal. The Third Circuit denied an injunction, so plaintiffs filed this appeal to U.S. Supreme Court Justice Samuel Alito, who handles the Court’s injunction requests for New Jersey.
The plaintiffs argue that the district court was wrong to make the comparison to theaters and concert halls.
“The question is whether any unprohibited activities are at least as risky as religious activities,” the suit says, arguing that “under Governor Murphy’s spate of executive orders, a vast swath of permitted secular activities manifestly endanger the government’s interest — ‘containing the virus’ —to the same or greater degree as houses of worship, and yet none are as restricted as houses of worship,” citing examples of schools, manufacturers, warehouses and food processing centers.
The plaintiffs also claim that the state’s mask mandate in houses of worship is unconstitutional, because during services the mask may be removed only briefly such as when necessary for the performance of a religious ritual, while “numerous open-ended exemptions from mask-wearing are afforded for secular reasons such as health, practicability, exercise, office work, and more, with no temporal limitation to a brief moment.”
“New Jersey’s scheme,” the suit argues, “is a blatant violation of this Court’s promise of equality for religious observers.”
Murphy’s office did not respond to Hamodia’s request for comment on the lawsuit.
The injunction application was filed Nov. 20. On Nov. 28, Alito ordered the state to submit its response by Dec. 3, and the plaintiffs to submit their reply the next day.
On Nov. 25, the Supreme Court granted an injunction to Orthodox Jewish and Catholic groups against restrictions on houses of worship in New York, in a case that had similar arguments over whether houses of worship should be compared to businesses, which have fewer restrictions, or only to theaters and concert halls, which have greater restrictions. The New York scheme had limited attendance at worship services to the lesser of 10 people or 25 percent of maximum occupancy in a zone with high COVID rates, and the lesser of 25 people or 33% of occupancy in a zone with lower COVID rates. The plaintiffs had challenged only the 10- and 25-person limit, which the Court overturned, leaving in place the 25%- and 33%-of-occupancy limits.
But in this New Jersey case, the plaintiffs – alleging a violation of the constitutional guarantees of religious liberty, freedom of speech and freedom of assembly – are seeking to have both the numerical and percentage-of-occupancy limits overturned, since many “essential” non-retail businesses are afforded 100% occupancy; or at least allowing 50% occupancy, the limit imposed on “essential” retail businesses.
“What is good for schools, factories, homeless shelters, outdoor crowds, professional sports, and barber shops,” the suit argues, “is good for worship, too.”
The Supreme Court will not necessarily rule on this injunction request. Whether it chooses to rule on the request may hinge on whether it views this case as being sufficiently different from the New York case.
The case is Robinson v. Murphy. The brief by the houses of worship is available here.