Posted Thu Nov 12th 2020, 6:46 pm by Amy Howe
The Roman Catholic Diocese of Brooklyn on Thursday asked the Supreme Court to block restrictions on personal church attendance due to the coronavirus pandemic. The plea renews a dispute over restrictions on services while some secular businesses remain open. The Supreme Court turned down similar challenges over the summer, but this is the first to come to judges since Judge Amy Coney Barrett’s confirmation last month, and the diocese could do better in the now more conservative court.
The order issued by New York Governor Andrew Cuomo (D) in October at the filing center on Thursday limits personal attendance at church services to 10 or 25 people, depending on the number of COVID-19 cases in the areas in where a particular church is located. In practice, according to the diocese, the order “effectively forbids personal worship in the affected churches – a” devastating “and” spiritually damaging “burden on the Catholic community.” In contrast, according to the diocese, many secular companies, including “everything from supermarkets to pet stores”, stay open.
The diocese went to the federal district court in New York, where it argued that Cuomo’s order violated the free exercise clause of the constitution. Both the District Court and the U.S. Circuit Court of Appeals declined to block the limits, which led to an appeal to the Supreme Court on Thursday.
The filing on Thursday followed other challenges from religious institutions for COVID-related shutdown orders and attendance restrictions. In May, the judges split 5: 4 when they denied a request from a church in the San Diego area to issue an order that would allow it to hold Sunday services. The South Bay United Pentecostal Church had argued that the reopening plan drawn up by California Governor Gavin Newsom (D) and San Diego County discriminated against places of worship by keeping the church closed while allowing retail stores, offices, restaurants and schools to operate.
Chief Justice John Roberts voted with the court’s four other Liberal Justices to deny the Church’s request. In a statement explaining his decision, Roberts stressed that courts should not normally question politicians’ decisions on issues such as those raised by the Church – especially when “local officials are actively shaping their response to changing facts on the ground “.
Four judges – Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh – said they accepted the Church’s motion. In a dissenting opinion from Thomas and Gorsuch, Kavanaugh argued that California had no good reason to treat places of worship differently from the shops that are allowed to remain open.
In July, the court again divided 5-4 by denying a motion by a church in Nevada for an order that would have allowed it to hold personal services on the same terms as other state facilities, including casinos. The Church, Calvary Chapel Dayton Valley, argued that the COVID-19 shutdown order issued by the state’s Democratic Governor Steve Sisolak discriminated against places of worship by allowing a maximum of 50 people to attend services while allowing casinos, gyms, bars and restaurants with 50% of the capacity to work.
Thomas, Alito, Gorsuch and Kavanaugh had again granted the Church’s request. In a dissenting opinion from Thomas and Kavanaugh, Alito wrote that the “willingness of the Supreme Court to allow such discrimination is disappointing”. “For months,” complained Alito, “state and local governments” have responded to the pandemic by imposing unprecedented restrictions on personal freedom, including the freedom to practice one’s religion. “And while these restrictions may have been ‘understandable’ at the time, government officials are not free to ‘disregard the Constitution while the medical problem persists.’
The court has changed significantly in one respect since its ruling in the Nevada case: Eight weeks after that ruling, Judge Ruth Bader Ginsburg died of complications from pancreatic cancer. It was followed by the more conservative Barrett, who is more receptive to Church reasoning than its predecessor.
The diocese’s application first went to Judge Stephen Breyer, who is currently making emergency calls from the 2nd district. Shortly after the diocese filed its application Thursday, Breyer ordered the state to file a response by Wednesday, November 18 at 2 p.m. EST.
This article was originally published by Howe on the Court.
Amy Howe, Brooklyn Catholic Diocese, has asked judges to block worship restrictions.
SCOTUSblog (November 12, 2020, 6:46 pm), https://www.scotusblog.com/2020/11/brooklyn-catholic-diocese-asks-justices-to-block-limits-on-attendance-at-church – Services/