By Steve Elzinga
Originally published by SHERMAN, SHERMAN, JOHNNIE & HOYT, LLP 
Oregon has lifted capacity limits on religious gatherings following a series of US Supreme Court orders that indicated Oregon’s restrictions were likely unconstitutional. The change was made in the “Sector Risk Level Guidance Chart” of restrictions published by the Oregon Health Authority in a low-profile footnote that “Capacity limits for faith institutions are recommended only.”
Although the Governor’s COVID-19 website has not been updated as of this morning, OHA documents say this change was effective Friday, December 18, 2020. Other requirements, such as maintaining six feet of social distance between households, regular sanitation, and wearing masks are still applicable. This change came as faith communities celebrated the last day of Hannukah and prepared for Winter Solstice and Christmas.
The US Supreme Court’s recent emphatic enforcement of the US Constitution’s First Amendment right to free exercise of religion likely played a role. On November 25, 2020, the Supreme Court decision in Roman Catholic Diocese of Brooklyn v. Cuomo struck down New York’s limits of 10 or 25 people per religious gathering in areas with high COVID-19 transmission. Secular activities like “acupuncture facilities, campgrounds, garages, . . . plants manufacturing chemicals and microelectronics and all transportation facilities” had no capacity limits. The Court noted that “even in a pandemic, the Constitution cannot be put away and forgotten” and that the Constitution protects “the minimum requirement of neutrality” toward religion. The Court relied on the seminal case of Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993).
In the last few weeks, the Supreme Court has ordered lower courts to reconsider restrictions on faith gatherings in California, Colorado, and New Jersey. The New Jersey decision was notable since its limits were slightly more permissive than Oregon’s.
New Jersey had limited religious gatherings to 25% capacity or 150 people, while retail stores were allowed 50% capacity. Oregon’s prior limits for religious gatherings were 25% capacity or 100 people, while retail stores were allowed 50% capacity. With the Supreme Court indicating that New Jersey’s limits were constitutionally suspect, Oregon likely made the strategic call not to risk a similar lawsuit here.
Now that Oregon has effectively acknowledged that religious gatherings cannot be singled out for less favorable treatment than other secular activities like retail stores, as the Supreme Court’s decisions recognize—and since new COVID-19 vaccines are now reducing health risks more and more each day—the state will not be able to reimpose discriminatory limits on religious gatherings without risking significant civil liability.