The Supreme Court filed motions late Wednesday evening from the Roman Catholic diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York executive order restricting attendance at places of worship. Both the diocese and synagogues claimed that the executive ordinance violated the right to freedom of worship guaranteed by the first amendment, particularly if secular businesses were allowed to remain open in the region. The orders of a closely-knit Supreme Court on Wednesday, which rejected two similar motions from churches in California and Nevada that summer, marked a significant shift to the right of the court as Judge Amy Coney Barrett replaced Judge Ruth Bader Ginsburg, who died in September.
Five Conservative judges – Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett – sided with the religious groups and blocked the attendance restrictions. Chief Justice John Roberts disagreed along with Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan.
New York Governor Andrew Cuomo, a Democrat, issued executive order in October at the center of both disputes. As part of the state’s efforts to fight COVID-19, the Executive Ordinance and an initiative it implements identify clusters of COVID-19 cases and then take action to prevent the virus from spreading. An area immediately around a cluster is called the “red” zone, in which attendance at church services is limited to 10 people. The area around a “red” zone is called the “orange” zone. Attendance at church services is limited to 25 people. “Yellow” zones surround “orange” zones; The presence there is limited to 50% of the maximum capacity of the building.
The diocese went to the Supreme Court on November 12 and asked the judges to block the attendance restrictions after the lower courts refused. The Supreme Court was told that the ordinance “effectively prohibits personal worship in the affected churches – a” devastating and “spiritually damaging” burden on the Catholic community “.
The synagogues followed on November 16. They stressed that although they followed previous COVID-19 rules, they were unable to conduct worship services for all of their congregation due to the restrictions imposed by Cuomo’s order, and they argued that Cuomo’s orders were aimed at Orthodox Jewish communities because other Orthodox Jews had broken the rules.
Cuomo pushed back last week, responding that the entry restrictions no longer apply to the churches and synagogues located in areas that are now designated as yellow zones. But in any case, Cuomo told the judges, the Order is not focusing on gatherings because they are religious, but because of the possibility that they could be “superspreader” events. Cuomo added that the Order treats religious gatherings more favorably than secular events – such as plays and concerts – that involve similar risks.
In an unsigned statement in the Catholic Diocese’s case, which also applies to the synagogue case, the five-strong majority prevented the state from enforcing the attendance restrictions while the challengers continue the matter before the U.S. Court of Appeals for the 2nd circuit and go to the US Court of Appeals. If necessary, return to the Supreme Court for a final decision on the matter. The court stated that Cuomo’s order does not appear to be neutral but “individual[s] from churches for particularly harsh treatment. “Although a synagogue or church in a red zone is limited to 10 people per service, there is no limit to the number of people a nearby“ essential ”business – which may include acupuncture or a campsite – can allow.
Since the Cuomo regulation is not neutral, it is subject to the strictest constitutional test known as Strict Control. It fails this test, the court concluded, because the order is too broad. There is no evidence that these synagogues and churches contributed to the outbreaks, and instead other, less restrictive rules could have been applied – such as maximum attendance based on the size of the facility. And if the restrictions are enforced, the court added, they will cause permanent harm to those unable to attend and for whom a livestream of services is not an adequate substitute.
The court’s opinion in both cases was published a few minutes before midnight on the night before Thanksgiving.
Gorsuch submitted a brief, separate statement in which he emphasized that “[e]If the constitution took a vacation during this pandemic, it cannot become a sabbatical year. “
Kavanaugh submitted his own opinion, stressing that Wednesday’s court decision is temporary until the 2nd Circuit, due to be heard in the dispute next month, can respond to the case, followed by a decision on the merits of the Judge.
Kavanaugh also pushed back a point that was at the center of a dissenting opinion from Roberts who acknowledged that the restrictions in these cases “may well” be in violation of the freedom of exercise clause, but claimed that the court did not consider it “serious.” and difficult “must decide question” now because the attendance restrictions for the challengers no longer apply. Kavanaugh countered that there was “no good reason” not to act now. If the houses of worship contesting the restrictions do not return to red or orange zones, the court’s rulings will “do no harm to the state or affect the state’s response to COVID-19”. However, if they end up in red or orange zones again, the decisions ensure that they are not subject to unconstitutional treatment.
Breyer submitted his own dissenting opinion, which Sotomayor and Kagan followed. You agreed with Roberts that the court need not act now. In any case, Breyer added, since we know how the virus is transmitted, especially when it comes to the increased risk of transmission from indoor activities where people are in close contact for long periods of time, the question of whether the presence restrictions are against the constitution violated, is “anything but clear”.
Sotomayor also filed a separate dissenting opinion, which Kagan endorsed. In their view, the Challenger’s cases were “easier” than the challenges the churches in California and Nevada faced last summer to close orders and attendance restrictions because Cuomo’s Order treats places of worship more favorably than comparable secular assemblies. In a deliberate refutation of Gorsuch’s opinion, Sotomayor agreed that states “must not discriminate against religious institutions even when faced with a crisis as deadly as this. But these principles, “she stressed,” are not at stake today. “
This article was originally published by Howe on the Court.
Amy Howe, judge lift New York’s COVID-related attendance restrictions for church services,
SCOTUSblog (November 26, 2020, 2:18 am), https://www.scotusblog.com/2020/11/justices-lift-new-yorks-covid-related-attendance-limits-on-worship-services/