John M. Cunningham

Columnist

In my column in this paper last week, I addressed the question whether, in order to protect New Hampshire residents from the coronavirus, Governor Sununu could lawfully require them to wear masks in public places and could impose fines or other legal penalties on them for failure to do so.   On the basis of the relevant U.S. Supreme Court cases and a recent New Hampshire trial court case, I wrote that the answer is clearly yes.

One of the U.S. Supreme Court cases that I cited in my column was South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, decided on May 29, 2020 (the “South Bay case”).  However, that case did not address masks; rather, it addressed the constitutionality of an order by Gavin Newsom, the governor of California, providing that during their services, California churches, synagogues and mosques may permit only the lesser of 100 individuals or 25% of the maximum number of individuals for which their buildings have capacity.  (For brevity, in the rest of this column, references to churches will also include synagogues and mosques.)

On July 24, Governor Sununu issued an order announcing New Hampshire church attendance rules that, for many churches, will function substantially more permissively than they could function under Governor Newsom’s rules; under this order, churchgoers in New Hampshire can attend services as long as they socially distance six feet apart, refrain from touching others by shaking hands, hugging or otherwise, and occupy no more than 40% of the attendee capacity of the church in question.

To my knowledge, no New Hampshire churches have thus far sought to challenge Governor Sununu’s order.  However, it is also true that thus far, New Hampshire has been almost uniquely successful among the 50 states and the District of Columbia in avoiding coronavirus infections and deaths.  If this situation changes in New Hampshire, Governor Sununu or his successor may feel a duty to permit substantially fewer attendees at New Hampshire church services or even none at all.  

If this happens, New Hampshire church leaders should be aware that despite the decision of the U.S. Supreme Court in South Bay, U.S. constitutional law concerning the extent to which state governments may restrict church attendance is by no means settled; and that under this law, a challenge to the above stricter New Hampshire restrictions might well succeed.  The governing case law is complex and unclear, but South Bay itself and the other leading cases can be very briefly summarized as follows:

• South Bay was decided by a five-to-four vote.  It’s not hard to imagine the Supreme Court deciding in favor of a church on a religious discrimination claim if, on the relevant facts, the church’s case is even slightly stronger than the South Bay church’s case.

• In arguing its case in the Supreme Court, the South Bay church faced almost insurmountable procedural requirements; it had to prove, among other things, that its legal rights were, in the Supreme Court majority’s words, “indisputably clear.” 

• In recent years, the Supreme Court has held, in a case called Employment v. Smith, 494 U.S. 872 (1990), that restrictions on religious liberty will be constitutionally valid as long as they are “generally applicable.”  The meaning of this “general applicability” rule is very much in dispute.  However, it may be reasonably construed as providing that a religious restriction must be upheld if it applies not only to church buildings but also to the buildings of generally similar institutions where people gather together in in significant numbers, in close proximity and for significant periods of time—e.g., concert halls and movie theatres.

• However, if attendance restrictions are ever imposed in New Hampshire or other states that are substantially stricter than those recently imposed by Governor Sununu, church leaders may well argue that because of their purpose, churches are not generally similar to concert and movie providers despite the above similarities.  The purpose of concerts and movies is entertainment.  The purpose of churches is to worship God.  

In my view, a court in New Hampshire or elsewhere might well interpret Employment v. Smith as supporting the above argument even in the demanding procedural context of the South Bay case.  On this basis, it might well strike down the above restrictions.

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