In response to the public-health emergency arising from the coronavirus pandemic, states and localities around the country have implemented a wide range of restrictions on public activities, including public-gathering bans that encompass constitutionally protected events like protests and religious ceremonies. These bans implicate core constitutional concerns, including the rights to assemble, to speak, to exercise religion, and to move freely in public. They also implicate fundamental issues about the authority of government bodies to take emergency action in the face of a grave threat, such as the coronavirus pandemic.

Courts around the country have been grappling with these competing interests, with the Supreme Court last week having turned away a challenge, the Second Circuit considering one as this column appears, and recent litigation by the New York Civil Liberties Union having prompted a significant change to New York's public-gathering restrictions. These cases illustrate the obvious: Balancing the fundamental constitutional interests implicated by coronavirus-based public-gathering bans is extraordinarily difficult and extraordinarily important. And the national explosion over the last week about the killing of George Floyd in Minneapolis highlights the need to scrutinize closely restrictions on protests.

The National Picture

My colleagues at the ACLU have been tracking challenges to public-gathering bans across the country and reported the following as of the end of last week. Approximately 40 lawsuits had been filed by churches, religious groups, or individuals alleging that their right to worship had been violated in one way or another. (In some instances, the religious-freedom claims are part of a broader challenge to a public-assembly ban or a stay-at-home order in its entirety.) The relief sought by the plaintiffs in these cases has varied; among other requests, plaintiffs have sought the right to hold drive-in church services, in-person worship services with and without social-distancing precautions, and in-person worship services with greater attendance (e.g., more than 10 people) than permitted under a state's applicable order.

Where courts have issued rulings in these cases, the majority have rejected the religious freedom claims, with several notable exceptions. In 14 cases, the religious-freedom claims were denied on various grounds, including standing or jurisdictional grounds and on the merits. (Some cases were on appeal.) In two cases, the courts, including the U.S. Court of Appeals for the Sixth Circuit, allowed only drive-in worship services, despite the fact that some plaintiffs sought in-person services. The Sixth Circuit, however, subsequently held in another case that in-person worship services, with social distancing, must be permitted; five other courts have ruled similarly, including the Fifth Circuit. Of the remaining cases, 14 were pending, with no ruling yet issued, and four cases voluntarily were dismissed before the courts issued a decision.

Fewer cases have challenged emergency orders for violating the free-speech and free-assembly clauses. As of May 27, only six relevant orders were available on Westlaw, and each denied the protesters' request for preliminary relief. All but one held the protesters were not likely to succeed on the merits, citing the deferential standard the Supreme Court set forth for public-health orders in Jacobson v. Massachusetts, 197 U.S. 11 (1905). The rulings further conclude that, even if the orders were analyzed as time-place-and-manner restrictions, the claims nevertheless were unlikely to succeed on the merits because (1) the orders were viewed as being content-neutral, (2) there was no way to satisfy the government's interest in protecting health other than banning public gatherings, and (3) alternative means for expression—namely, online, video, phone, and drive-in protests—were sufficient.

Last week the Supreme Court waded into the coronavirus debate for the first time when it denied a church's request for an emergency injunction in South Bay United Pentecostal Church v. Newsom, No. 19A1044 (May 29, 2020). The four liberal justices voted without opinion to deny the request, and the four most conservative justices voted to grant it in a written dissent. The pivotal vote came from Chief Justice Roberts, who concurred in the denial and wrote a brief but telling opinion.

The Chief Justice started his five-paragraph concurrence with this description of the dispute:

The Governor of California's Executive Order aims to limit the spread of COVID–19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others. The Order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency. State guidelines currently limit attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.

The Chief Justice then characterized California's order as neutrally distinguishing between events like lectures, concerts, movies, spectator sports, and theatrical performances on the one hand and on the other "dissimilar" activities at grocery stores, banks, and laundromats. Though he doesn't identify it as such, one of the central debates around public-gathering bans has been about whether 50 people being in a grocery store is different than 50 being in a church, with public-health officials arguing that events like church gatherings are far more likely to produce sustained and close personal interactions that will not occur with individual shoppers in a store.

Turning to the law, Chief Justice Roberts based his rejection of the requested emergency injunction on the complexity of the issues presented by pandemic-based restrictions and on the court's long-standing deference to public-health authorities in these circumstances:

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts "[t]he safety and the health of the people" to the politically accountable officials of the States "to guard and protect." Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials "undertake[] to act in areas fraught with medical and scientific uncertainties," their latitude "must be especially broad." Marshall v. United States, 414 U.S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an "unelected federal judiciary," which lacks the background, competence, and expertise to assess public health and is not ac-countable to the people.

The Chief Justice's invocation of Jacobson v. Massachusetts is key, as that case is framing all the litigation around coronavirus-based restrictions on public gatherings. Jacobson presented a constitutional challenge to a Cambridge, Mass., regulation requiring all inhabitants be vaccinated against smallpox, which had become "prevalent to some extent" in Cambridge. In rejecting the challenge, the Supreme Court spoke broadly of the power of the government to restrict individual liberty in the name of public health:

There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.

New York's Limits

As the epicenter of the coronavirus outbreak, New York has been aggressive in regulating public gatherings, prompting litigation that is playing out now. On March 7, Gov. Andrew Cuomo declared a state of emergency and on March 23 imposed a sweeping ban on public gatherings: "Non-essential gatherings of individuals of any size for any reason (e.g., parties, celebrations or other social events) are canceled or postponed at this time."

On May 12 notorious right-wing blogger Pamela Geller sought a temporary restraining order of the ban, claiming she intended to hold a rally near City Hall Park in lower Manhattan. On May 15, Southern District Judge Denise Cote denied the request, holding that the New York ban was a content-neutral restriction that was reasonably related to the public-health concerns of coronavirus. Geller appealed to the Second Circuit.

Meanwhile, for reasons unrelated to that case, Governor Cuomo substantially modified the state ban in the week before the Memorial Day weekend. In a May 21 executive order, he created two exceptions to the ban to permit gatherings "of ten or fewer individuals for any religious service or ceremony, or for the purposes of any Memorial Day service or commemoration." The next day the NYCLU filed suit in the Southern District of New York, contending the modified ban violated well-established Supreme Court law barring restrictions on expressive activity that are based on the content of the expression—in this case barring all events except ones that commemorated Memorial Day or were religious in nature. Shortly before a hearing later that day on the NYCLU's request for a temporary restraining order on behalf of a woman who already had been arrested twice for staging small demonstrations and who had a protest scheduled for May 23, the governor agreed to modify the executive order to eliminate the content-based distinctions. Under an order issued that evening, groups of up to ten who observe social distancing may gather "for any lawful purpose or reason" in New York.

Notwithstanding this substantial change, Pamela Geller proceeded with her appeal, seeking an emergency injunction similar to the one the Supreme Court rejected. The Second Circuit heard argument earlier this week and a ruling may come any day.

Looking Forward

As state and localities continue to "open" in the coming months and weeks, we can expect public-gathering bans to be relaxed. At the same time, as more and more people are available to gather in groups, even more permissive limits may affect larger numbers of people and therefore face increased scrutiny and be the subject of increasing litigation.

As suggested by Chief Justice Roberts's opinion in South Bay Pentecostal Church, these challenges are necessarily "fact-intensive," requiring a close examination of the public-health dimensions of the specific restriction being challenged. For instance, restrictions on indoor religious ceremonies may be far more justifiable than ones on similar-sized outdoor protests given what public-health expertise indicates about different transmission threats of indoor and outdoor activities. To date, too many of the cases—as is true with the Pamela Geller challenge—have not included appropriate record evidence about relevant public-health considerations.

On the other hand, what does not require close examination are restrictions relying on content or even viewpoint distinctions. If government officials determine it is safe to allow 50-person religious events, they likewise must permit 50-person protests. And they plainly cannot—as Governor Cuomo's tried to do—allow patriotic events while barring ones critical of the government, such as the nationwide protests over police violence.

Christopher Dunn is the legal director of the New York Civil Liberties Union. He can be reached at [email protected].