Colorado Coronavirus Response Unconstitutionally Restricted Religious Institutions, Holds Federal Judge

Houses of worship, which the Colorado order labels "critical" institutions, must be treated at least as well as other critical institutions.

From Judge Daniel D. Domenico's decision last week in Denver Bible Church v. Azar (including three citations to Ilya Somin's post about Jacobson on this blog):

The State rightly argues that during a public-health emergency, courts must be particularly mindful of the complex interaction between constantly evolving scientific understanding and policymaking, and the court recognizes that the decisions being made by the State Defendants here are truly matters of life and death. For the most part, the court, like Plaintiffs and the rest of Colorado's citizenry, must and does defer to State policymakers' weighing of the costs and benefits of various restrictions imposed to minimize the spread of COVID-19.

But the existence of an emergency, even one as serious as this one, does not mean that the courts have no role to play, or that the Constitution is any less important or enforceable. And while the religious, like the irreligious or agnostic, must comply with neutral, generally applicable restrictions, the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship's religious exercise. Those fundamental principles, which involve no balancing or second-guessing of public health officials' scientific analysis or policy judgments, require the court to grant Plaintiffs' motion, in relatively narrow part.

In addition to other neutral and generally applicable restrictions, Colorado currently imposes capacity limits on houses of worship that are more severe than those that apply to other so-called critical businesses whose settings pose a similar risk of COVID-19 transmission, and the State allows a variety of exceptions to its facial-covering requirement where it recognizes that removing a mask is necessary to carry out a particular activity. The court does not doubt that the State made these decisions in good faith, in an effort to balance the benefits of more public interaction against the added risk that inheres in it. But the Constitution does not allow the State to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant's or spa's.

Judge Domenico began by concluding that Jacobson v. Massachusetts (1905) doesn't foreclose strict scrutiny of restrictions on constitutional rights during an epidemic:

Emergencies like this one raise an age-old question. When confronting an emergency, to what extent can the government curtail civil rights? And what is the proper scope of judicial review of actions taken by state or federal governments in response to the emergency? Justice Jackson was surely correct that the Bill of Rights is not a suicide pact—the Constitution doesn't kneecap a state's pandemic response.

But the existence of a crisis does not mean that the inalienable rights recognized in the Constitution become unenforceable. Cf. Hamdi v. Rumsfeld (2004) (plurality opinion) ("It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."). The question, then, is where to draw the line. How, if at all, does the normal analysis courts use to evaluate alleged constitutional violations change when the challenged government action was taken to combat a pandemic or other emergency threatening public health or safety?

The analysis changes in a number of ways. For one thing, there is no question that the State here has a compelling interest in protecting its citizens from the SARS-CoV-2 virus. Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) ("The police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."). For another thing, a state's actions during a public-health emergency, like Colorado's here, are often taken against a backdrop "fraught with medical and scientific uncertainties." It isn't the job of the judiciary to second-guess the "wisdom, need, or appropriateness" of the measures taken by a state to protect the health of its people during a pandemic.

Colorado argues, however, that the Supreme Court's 115-year-old decision in Jacobson doesn't simply fit within the normal constitutional analysis or merely modify it to account for emergency circumstances. Colorado instead argues that this court's analysis begins and essentially ends with Jacobson. In Jacobson, the Supreme Court rejected a challenge to a mandatory vaccination law, holding that states have broad authority to implement emergency measures to protect "the safety and the health of the people," so long as those measures have some "real or substantial relation" to that objective and are not "beyond all question, a plain, palpable invasion of rights secured by the" Constitution.

According to Colorado, the import of Jacobson is that courts should only intervene against state emergency action in "extreme cases," without applying modern constitutional doctrine. Essentially, the State's view is that, like the suspension of the writ of habeas corpus permitted by the Constitution in times of "Rebellion or Invasion," normal constitutional review of state action is suspended when that action is taken to stop or slow a pandemic or other crisis.

{Colorado argues that the Supreme Court recently affirmed this reading of Jacobson when the Court denied applications for injunctive relief from public-health orders issued by California and Nevada. See S. Bay United Pentecostal Church v. Newsom (2020) (mem.); Calvary Chapel Dayton Valley v. Sisolak (2020) (mem.). But those decisions aren't precedential.). And Colorado overlooks the fact that the Supreme Court applies a heightened standard when evaluating a request for injunctive relief that was denied at the District Court level. S. Bay (Roberts, C.J., concurring) (Court "grants judicial intervention that has been withheld by lower courts" only "where the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances" (internal quotation marks omitted)).}

The court cannot accept the position that the Constitution and the rights it protects are somehow less important, or that the judicial branch should be less vigilant in enforcing them, simply because the government is responding to a national emergency. The judiciary's role may, in fact, be all the more important in such circumstances. Jacobson, while an important and instructive case, isn't a "blank check for the exercise of governmental power." Indeed, Jacobson itself says that "no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation" to safeguard public health and safety may "contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument." "A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict … with any right [the Constitution] gives or secures." And so, while the State can and must take action to respond to an emergency, it must do so within the confines of the Constitution. In other words, while an emergency might provide justification to curtail certain civil rights, that justification must fit within the framework courts use to evaluate constitutional claims in non-emergent times….

So the better view is thus that Jacobson fits within existing constitutional doctrine. First, Jacobson means that most state and local public-health orders that don't implicate fundamental rights will be analyzed under what is now known as the rational basis test. And they will, as this court previously held, generally be upheld. Second, as noted above, even where heightened scrutiny does apply, Jacobson stands for the undeniable proposition that fighting a pandemic is a compelling state interest.

Third, and perhaps less obviously, Jacobson's emphasis, in conjunction with cases like Marshall and Edwards, on the need for judicial deference to policymakers' analysis of evolving scientific and medical knowledge helps explain why, as "emergency" restrictions extend beyond the short-term into weeks and now months, courts may become more stringent in their review. In the court's view, this admonition comes into play in the "tailoring" prong of current constitutional doctrine. Where fundamental rights are implicated, this requires assessing whether the government's action is the least restrictive means available.

In the earliest days of a pandemic or other true emergency, what may be the least restrictive or invasive means of furthering a state's compelling interest in public health will be particularly uncertain, and thus judicial intervention should be rare. But as time passes, scientific uncertainty may decrease, and officials' ability to tailor their restrictions more carefully will increase. What may have been permissible at one point given exigencies and realistic alternatives in the face of those exigencies may not remain permissible in the long term.

Applying normal constitutional scrutiny—even strict scrutiny, where appropriate—does not mean that the majority of actions taken by the State in response to the COVID-19 pandemic will be found invalid. As the remainder of this Order shows, "[m]any, probably even most, emergency measures will be upheld even under ordinary judicial review." In light of "the severity of the threat, [emergency measures] can pass even a high level of scrutiny." "But maintaining normal judicial review reduces the risk of pretextual policies, and helps ensure that even well-intentioned ones do not overreach." A pandemic is, in other words, a context where constitutional scrutiny might be strict in theory, but not fatal in fact….

And applying normal constitutional scrutiny, in light of these considerations, the court held that Colorado Public Health Order 20-35 violates the Free Exercise Clause:

While the order designates houses of worship as "critical," in practice it treats them differently from other "critical" businesses and activities, even those that pose a comparable risk of COVID-19 transmission. Plaintiffs highlight two restrictions in the order that, they contend, are unconstitutionally applied to houses of worship and burden their right to free exercise: occupancy caps for indoor worship services, and the requirement that worshippers wear a face mask for indoor services….

Under the current Public Health Order, at Level 1 of the Safer at Home Levels, houses of worship "may operate at 50% of the posted occupancy limit indoors not to exceed 175 people." At Level 2, houses of worship "may operate at 50% of the posted occupancy limit indoors not to exceed 50 people." And at Level 3, they "may operate at 25% of the posted occupancy limit indoors not to exceed 50 people."

Even though many secular institutions designated as "non-critical" are also required to comply with the same or similar occupancy limitations, Public Health Order 20-35 creates exemptions for a wide swath of secular institutions deemed "critical," including: meat-packing plants, distribution warehouses, P-12 schools, grocery stores, liquor stores, marijuana dispensaries, and firearms stores. In other words, the JBS meat-packing plant in Greeley, the Amazon warehouses in Colorado Springs and Thornton, and your local Home Depot, Walmart, King Soopers, and marijuana shop are not under any additional occupancy limitation other than the six-foot distancing requirement. Denver Bible Church and Community Baptist Church, by contrast, must comply with numerical occupancy caps, no matter how many people their sanctuaries might accommodate while maintaining six feet of distance between non-household members.

Consider as well the face-mask mandate in Executive Order D 2020 138, which is incorporated by reference into to Public Health Order 20-35. It generally requires persons older than ten to wear a face covering when inside a Public Indoor Space, which includes houses of worship. Yet, for example, "individuals who are seated at a food service establishment" are exempt from the face-mask requirement. "Individuals who are receiving a personal service where the temporary removal of the face covering is necessary to perform the service" are also exempt, as are "Individuals who are exercising alone or with others from the individual's household and a face covering would interfere with the activity." Executive Order D 2020 138 contains a total of eight exemptions, none of which apply to worship services.

By the orders' terms and in effect, what this system of limitations and exemptions has done is to both ease restrictions on what the State deems critical, and to some extent noncritical, activities, and to remove particular restraints, like the face-mask requirement, when those restraints would interfere with what the State considers a "necessary" part of the activity.

The State may have the power in general to decide what activities are and are not critical to ensure the health and safety of individuals and their households, and what tasks are necessary to carry out secular activities. But it does not have the power to decide what tasks are a necessary part of an individual's religious worship. And while religious exercise is subject to truly neutral and generally applicable regulations, once the State begins creating exceptions for secular activities as it deems necessary, then it is obligated to treat religious activities no less favorably, absent a compelling reason….

The State Defendants offer three reasons for their disparate treatment of houses of worship. None is compelling.

Colorado first justifies its discriminatory treatment of houses of worship on the ground that contact tracing is easier in houses of worship than in the kinds of retail settings that are exempt from the more onerous occupancy limits in Public Health Order 20-35: "It is also practically impossible to perform contact tracing between strangers who have anonymous interactions in a critical retail setting." Far from helping Colorado, this argument cuts strongly against it. That it is easier to use contact tracing in houses of worship than in other settings doesn't justify worse treatment of houses of worship—just the opposite. If anything, the relative ease of contact tracing at houses of worship justifies fewer restrictions, and concomitantly more restrictions on institutions where contact tracing is more difficult.

Next, Colorado says that its decision not to impose occupancy restrictions on schools reflects its respect for the principle of local control of school districts enshrined in Colorado's Constitution. This respect is well-placed. Local control is indeed an important concept in Colorado's Constitution. But it is not more important than the principles enshrined in the First Amendment to the United States Constitution. And if Colorado is willing to run additional risks out of respect for local school districts' autonomy, the First Amendment requires it to do the same out of respect for religious congregations' autonomy.

The State's strongest reason for treating houses of worship differently is that, in most of the secular institutions exempted from the occupancy and other limitations, indoor person-to-person contact is "transient," whereas person-to-person contact in a church setting is generally prolonged. The State Epidemiologist, Dr. Rachel Herlihy, testified that "in closed-indoor environments, respiratory droplets are more likely to linger on surfaces and/or be recirculated through the indoor space due to either poor ventilation or large numbers of people in the indoor space." According to Dr. Herlihy, "short, transient interactions" indoors are much less likely to transmit COVID-19 than extended indoor contact is.

While the court accepts these facts as true, Colorado's transient-versus-prolonged approach to differential treatment of houses of worship is flawed. The State's evidence regarding what constitutes a "close"—and thus dangerous—contact requires both a proximity and a duration component. According to Dr. Herlihy, "data are insufficient to precisely define the duration of exposure that constitutes prolonged exposure and thus a close contact. However, a close contact is defined as being within 6 feet for at least a period of 15 minutes to 30 minutes or more depending upon the exposure."

So according to the State's own evidence, for a contact to be "close" and thus significantly riskier, it must (1) be within six feet and (2) last for more than fifteen minutes. If so, a limit on either proximity or duration is adequate to avoid risky close contacts. And under the Distancing Requirements of Public Health Order 20-35, no entity open to the public, including houses of worship, may allow non-household person-to-person contact indoors within six feet. So even without an occupancy restriction, Plaintiffs are subject to a regulation that prevents one of the two necessary components of a risky close contact. That, according to the State's own evidence, ought to be enough. And, for most other critical businesses, it is: warehouses, schools, critical manufacturing, groceries, pharmacies, liquor stores, and others are allowed to operate at full capacity for presumably full shifts of well over an hour, on the assumption that the distancing restrictions will be adequate to protect against virus transmission.

The more serious problem is that Public Health Order 20-35 exempts secular settings that pose similar threats of prolonged exposure from the occupancy limitations and face-mask requirements imposed on houses of worship. What is the meaningful difference between, say, a warehouse, a restaurant, or an elementary school—where employees, diners, and students spend long periods in a closed-indoor setting—and a house of worship?

The best answer Colorado has is that "singing or speaking loudly propels respiratory droplets farther," and that this kind of activity happens in houses of worship but not in those other settings. Dr. Herlihy likewise generalizes that "customs in houses of worship may also result in increased contact. For example, shaking hands, observing Eucharist, passing a basket, or showing a sign of the peace may all place people in closer contact th[a]n they would be in other settings."

Perhaps. But shaking hands, passing items around, and showing a sign of peace have secular equivalents in many places of business or social settings. And as Dr. Herlihy admits, schools "also frequently have singing or loud, excited speaking." Indeed, most outbreaks in Colorado have occurred at workplaces, schools, and businesses, not churches. The largest outbreaks in the State have been at colleges and prisons. And the State's own data show that, of the nearly 900 active and resolved outbreaks Colorado has seen to date, only fifteen of those (less than 2%) occurred at a religious facility.

In the end, though, the court does not doubt the science underlying Colorado's decisions. It accepts that the best available evidence says transmission of COVID-19 is more likely indoors when people are together for long periods of time.

But the orders reveal that in practice the State treats some activities as necessary, but those Plaintiffs seek to engage in as less so. This reflects the view that, as one court put it, it is practically impossible to restrict people from working together in person in places like schools, food-processing facilities, restaurants, and warehouses, but "churches can feed the spirit in other ways." That may be true for many religious individuals and institutions, but it is not for Plaintiffs. And with due respect for both the State and the Seventh Circuit, this court does not believe government officials in any branch have the power to tell churches and congregants what is necessary to feed their spiritual needs. See Maryville Baptist Church, 957 F.3d at 615 (state is not entitled to decide whether reduced, masked congregation or online services are "an adequate substitute for what it means when 'two or three gather in my Name.'" (quoting Matthew 18:20))….

Plaintiffs are likely to succeed on the merits of their free exercise claim for a simple reason. Having decided that the risk of allowing various activities to be exempt from the strictest Safer at Home rules is justified on the basis that those activities are critical and necessary, the State cannot decide for Plaintiffs what is critical and necessary to their religious exercise. With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic.

As time passes, and Colorado learns more about the science of COVID-19, its public-health officials have made carefully tuned risk assessments about what activities they deem sufficiently important to warrant full-capacity reopening. These choices clarify what activities they believe serve societal interests of the highest order—primary and secondary education, convenient access to food and home supplies, and certain kinds of manufacturing.

These are important interests—critical and necessary even. But the People, through the Constitution, have resolved that the free exercise of religion is at least as critical and necessary. So Colorado's failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment's guarantee of the free exercise of religion. Plaintiffs have thus made a strong showing that they are likely to succeed on the merits of their as-applied free exercise claim.

Note well that the implications of this conclusion aren't as broad as some might hope or others might fear. Plaintiffs will still be subject to the neutrally applicable rules and prohibitions in Public Health Order 20-35. They will, for example, have to enforce sanitization requirements, maintain social distancing between individuals, and not permit shaking hands. All in all, based on their bona fide religious need to do so, Plaintiffs will be allowed to open their sanctuaries subject to the same capacity, social distancing, and masking rules that are applicable to other critical businesses, and will be able to permit congregants to remove their masks if and when it is necessary to carry out their religious exercise….