Justice Breyer, acting alone, ruled against a Maine church objecting in an emergency petition to the state’s COVID-restrictions on churches. Justice Breyer issued no written decision explaining his reasons. But it is likely he ruled this way because since May 24, 2021, Maine has had no capacity restrictions on indoor gatherings at houses of worship.   

Justice Breyer didn’t ask Maine to respond to the church’s petition and ruled on the petition alone, which indicates he probably didn’t think this was a close case.

Calvary Chapel of Bangor sued Maine Governor Janet Mills on May 5, 2020, claiming the state’s COVID restrictions on houses of worship violated the U.S. Constitution’s Free Exercise of Religion Clause. At that time gatherings of 10 people or more were disallowed, and church services had to be “drive-in, stay-in-your vehicle.” Limits for people visiting retail establishment were based on the square footage of the space (up to 100 people).

For most of the time between June 2020 and February 2021 all indoor gatherings were permitted to accommodate up to 50 people, though retail businesses could still hold five people per 1,000 square feet.

On February 12, 2021, Governor Mills expanded the gathering limit for houses of worship to the greater of 50 people or five people per 1,000 square feet. This meant religious gatherings were treated more favorably than other indoor gatherings and retail stores.

As of May 24, 2021, Maine has no capacity limits for indoor gatherings or in-store customers.

Over the last year the U.S. Supreme Court has struck down, on First Amendment grounds, state COVID restrictions which have treated religious gathering less favorably than “comparable secular activities,” including retail stores. Maine did this for a while. Nevertheless, the federal district court first hearing this challenge ruled against the church, concluding the case was moot. On June 4, 2021, the day the district court issued its opinion, no capacity limits on houses of worship were in effect in Maine. In July 2021 the First Circuit affirmed the district court’s ruling.

In its emergency motion Calvary Chapel argued the Court should rule in its favor because the “so-called Delta variant of the coronavirus and ‘the threat of an unconstitutionally-motivated [restriction] still hangs over [Calvary Chapel’s] head like a sword of Damocles.’”

It is possible the Supreme Court might review future COVID restrictions on houses of worship in Maine, assuming Maine’s governor adopts restrictions.

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