The US Supreme Court dealt a surprise blow to the pandemic restriction of the House of Worship in a nightly ruling that curtailed the enforcement of New York Governor Andrew Cuomo’s “Cluster Initiative” of October 6 and restricted attendance at church services. Five judges (including newly appointed judge Amy Coney Barrett) blocked the limits while the United States Court of Appeals for the second circuit was able to determine the merits of the case. In particular, Judge John Roberts voted with the Liberal judges, but only because he felt the order was unnecessary as plaintiffs were not currently subject to the strictest restrictions.
Five Conservative judges – Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett – sided with the religious groups, while Chief Justice John Roberts along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan disagreed. In particular, this is the first major decision in which Barrett’s addition to the Court of Justice as a swing vote was instrumental. If Ruth Bader Ginsburg had still stood before the court, this would have gone 5-4 in favor of New York.
The initiative created color-coded limits for mass gatherings and doing business with places of worship in designated red zones, capped at 25% of their capacity or 10 people, whichever is lower. The area around a “red” zone is referred to as an “orange” zone with a maximum of 25 people, and the area around this zone is designated as “yellow” with a limit of up to 50% of the maximum capacity of a building.
The diocese and synagogues submitted to the Supreme Court on November 12th followed on November 16. In particular, however, Cuomo claimed that these parties were in the yellow zones and were therefore not affected by the stricter limits.
This fact clearly convinced Roberts, who saw no reason for the court to intervene before the Second Circle decided on the merits. He wrote: “The numerical capacity limits of 10 and 25 people appear to be overly restrictive depending on the applicable zone. However, it is not necessary that we decide on this serious and difficult question at this point. “
Judge Brett Kavanaugh pushed back, noting that there was “no good reason” not to act now, as these places of worship could return to the more restrictive areas and, if not, the court’s decisions would “do no harm to the state and have no control over the state’s response to COVID-19. “
The most interesting observations came from the brief approval of Justice Neil Gorsuch, who stated that “[e]If the constitution took a vacation during this pandemic, it cannot become a sabbatical year. “The analysis at points was sarcastic about Cuomo’s priorities:
“At the same time, the governor has decided not to impose capacity restrictions on certain companies that he deems to be“ material ”. And it turns out that the stores the governor deems essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are also essential. In the governor’s opinion, at least, it might be unsafe to go to church, but it’s always okay to grab another bottle of wine, buy a new bike, or spend the afternoon exploring your distal points and meridians. Who would have thought that public health was so perfectly attuned to worldly comfort? “
Then he added:
“It is time – bygone days – to make it clear that while the pandemic poses many major challenges, there is no world where the constitution tolerates color-coded executive ordinances that reopen liquor and bicycle stores, but churches, synagogues and Mosques with shutters. ”
Part of Roberts’ dissenting opinion struck me as particularly remarkable. He seemed to be confronting Gorsuch for his rhetoric and the suggestion that his liberal colleagues would cast aside religious freedom:
As noted, the contested restrictions raise serious Constitutional concerns, and I agree with JUSTICE KAVANAUGH that they are different from those we see at South Bay United Pentecostal Church v Newsom, 590 US___ (2020), and Calvary Chapel Dayton Valley have considered v. Sisolak, 591 US ___ (2020). See Ante 1, 3–4 (agreed opinion). In this regard, I take a different approach than the other dissenting judges. To be clear, I do not see my dissenting colleagues as “cutting the Constitution loose during a pandemic” giving in to “a special judicial impulse to avoid the way in times of crisis” or “protection”[ing] present when the constitution is attacked. “Ante, 3, 5-6 (opinion of GORSUCH, J.). They simply see the matter differently after careful consideration and analysis, which reflects their best efforts to discharge their constitutional responsibilities. “
Justice Sotomayor also seemed to push back the framing:
“Free religious practice is one of our most cherished and jealously protected constitutional rights. States must not discriminate against religious institutions even when faced with a crisis as deadly as this. But these principles are not at stake today. “
The ruling is obviously encouraging news to those who are challenging these pandemic orders that with such restrictions they could have a majority of 5 or even 6 justice. This case could be brought back to court after the Second Circuit ruling, although much could change to these pandemic orders in the coming weeks to discuss the case.
Here is the order: ROMAN CATHOLIC DIOCESE BROOKLYN, NEW YORK v ANDREW M. CUOMO, GOVERNOR OF NEW YORK