A majority of the U.S. Supreme Court has overturned a federal judge in Colorado who denied an exemption from COVID-19 capacity limitations for a church in Weld County.

Harvest High Plains Church in Ault sought to hold in-person services with more than 50 attendees. They alleged the state had allowed racial justice protests to occur over the summer “while continuing to impose draconian restrictions on religious gatherings.”

U.S. District Judge Raymond P. Moore denied the church a preliminary injunction to exempt them from restrictions on Aug. 10, relying at the time on a similar scenario in which the Supreme Court denied relief to a Southern California Pentecostal church.

Chief Justice John G. Roberts wrote in that instance that the decisions of state officials during the pandemic “should not be subject to second-guessing by an ‘unelected federal judiciary.'”

Correspondingly, Moore cited clear differences between outdoor protests and indoor religious services, declining to exempt Harvest High Plains Church from health orders “merely because the state addressed an unprecedented and potentially explosive situation” – the protests – “with a modicum of restraint.”

The state pointed out that it had modified its public health orders in response to evolving needs, and that houses of worship “may host gatherings of 50% of the posted occupancy limit, up to 50 people, where physical distancing of 6 feet is observed – the very same relief Plaintiffs sought in their original complaint.”

However, since that time, the Supreme Court had a personnel change, with conservative Justice Amy Coney Barrett quickly added to the bench in October following the death of the more liberal Justice Ruth Bader Ginsburg. Following that ideological shift, the court’s majority decided to block capacity limitations for faith houses in New York with a decision in Roman Catholic Diocese of Brooklyn v. Cuomo.

“Even in a pandemic, the constitution cannot be put away and forgotten,” the opinion noted.

Similarly, the court’s unsigned opinion issued on Tuesday in the Colorado case directed Moore to reevaluate his denial of relief in light of the New York decision. Justices Elena Kagan, Stephen G. Breyer and Sonia Sotomayor dissented.

“Colorado has lifted all those limits,” Kagan wrote. “Absent our issuing different guidance, there is no reason to think Colorado will reverse course – and so no reason to think Harvest Church will again face capacity limits.”

She added that when the issue at the root of a plaintiff’s lawsuit does not have a reasonable chance of recurring, “a case is well and truly over.”

Conor Cahill, a spokesperson for Gov. Jared Polis, said that the ruling would have little impact on the state given the change Kagan cited. “Gov. Polis has prioritized freedom of assembly and freedom of worship, and this decision is already consistent with the current health guidance for houses of worship,” Cahill explained.

The attorney for Harvest High Plains Church, Barry K. Arrington, told The Denver Post it was not a certainty that capacity limits via health orders would never present another problem for his client.

“The state has in the past amended this thing willy-nilly, and there is nothing to stop them from amending it tomorrow,” he said.

In October, a federal judge in Colorado allowed two Denver-area churches to skirt capacity and mask-wearing limitations under certain circumstances, prompting three Christian bishops to publicly criticize such exemptions to health orders.

“Be assured that we will continue to expect all of our churches to prioritize care for our neighbors, following the guidelines your administration sets for the safe and responsible practice of faith communities during this public health crisis,” the bishops wrote to Polis.

Mark Hotaling, the pastor for Harvest High Plains Church, did not immediately respond to a request for comment. On July 17, the church’s Facebook page appeared comfortable with limitations on capacity. 

“With the new Public Health Order from the State, our new operating capacity is 73 (50% of our normal capacity). This is great news!” the Facebook post reads. “So there’s plenty of room for us to have close to a normal size service while still maintaining social distancing.”

Nine days later, Arrington filed a brief in federal district court asking the judge to allow “a gathering of 150 worshipers who commit to social distancing regulations.”

The case is High Plaints Harvest Church v. Polis.