The Supreme Court late Wednesday night granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York executive order restricting attendance at houses of worship. Both the diocese and the synagogues claimed that the executive order violated the right to the free exercise of religion guaranteed by the First Amendment, particularly when secular businesses in the area are allowed to remain open. Wednesday’s orders by a closely divided Supreme Court, which had turned down two similar requests over the summer by churches in California and Nevada, represented a clear rightward shift on the court since Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, who died in September.
Five conservative justices – Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett – sided with the religious groups and blocked the attendance limits. Chief Justice John Roberts, along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented.
New York Gov. Andrew Cuomo, a Democrat, issued the executive order at the center of both disputes in October. As part of the state’s effort to combat COVID-19, the executive order and an initiative that 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 known as a “red” zone, where attendance at worship services is limited to 10 people. The area around a “red” zone is known as an “orange” zone; attendance at worship services there is limited to 25 people. “Yellow” zones surround “orange” zones; attendance there is limited to 50% of the building’s maximum capacity.
The diocese went to the Supreme Court on Nov. 12, asking the justices to block the attendance limits after the lower courts declined to do so. It told the Supreme Court that as a practical matter, the order “effectively bars in-person worship at affected churches – a ‘devastating’ and ‘spiritually harmful’ burden on the Catholic community.”
The synagogues followed on Nov. 16. They stressed that although they have complied with previous COVID-19 rules, the restrictions imposed by Cuomo’s order preclude them from conducting services for all of their congregants, and they argued that Cuomo’s order targeted Orthodox Jewish communities because other Orthodox Jews had not complied with the rules.
Cuomo pushed back last week, responding that the restrictions on attendance no longer apply to the churches and synagogues, which are in areas that are now designated as yellow zones. But in any event, Cuomo told the justices, the order isn’t focused on gatherings because they are religious, but because of the possibility that they could be “superspreader” events. If anything, Cuomo added, the order treats religious gatherings more favorably than secular events – such as plays and concerts – that involve similar risks.
In an unsigned opinion in the Catholic diocese case that also applies to the synagogues’ case, the five-member majority blocked the state from enforcing the attendance limits while the challengers continue to litigate the issue at the U.S. Court of Appeals for the 2nd Circuit and, if necessary, return to the Supreme Court for a final decision on the merits. The court explained that Cuomo’s order does not appear to be neutral, but instead “single[s] out houses of worship for especially harsh treatment.” For example, although a synagogue or a church in a red zone is limited to 10 people at a service, there are no limits on how many people a nearby “essential” business – which can include acupuncture or a camp ground – can admit.
Because the Cuomo order is not neutral, the court continued, it is subject to the most stringent constitutional test, known as strict scrutiny. It fails that test, the court concluded, because the order is too broad. There is no evidence that these synagogues and churches have contributed to outbreaks, and other, less restrictive rules could have been employed instead – such as basing the maximum attendance on the size of the facility. And if the restrictions are enforced, the court added, they will result in permanent harm to people who cannot attend and for whom a livestream of services is not an adequate substitute.
The court’s opinion in the two cases was released a few minutes before midnight on the night before Thanksgiving.
Gorsuch filed a short, separate opinion in which he emphasized that “[e]ven if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
Kavanaugh filed his own opinion, stressing that Wednesday’s ruling from the court is only a temporary one until the 2nd Circuit, which is scheduled to hear argument in the dispute next month, can act on the case, followed – if necessary – by a decision on the merits by the justices.
Kavanaugh also pushed back on a point at the heart of a dissenting opinion filed by Roberts, who acknowledged that the restrictions in these cases “may well” violate the free exercise clause but maintained that the court did not need to decide that “serious and difficult question” now because the attendance limits no longer apply to the challengers. Kavanaugh countered that there is “no good reason” not to act now. If the houses of worship challenging the restrictions do not return to red or orange zones, he observed, then the court’s rulings “will impose no harm on the State and have no effect on the State’s response to COVID–19.” But if they do end up back in red or orange zones, the rulings will ensure that they are not subject to unconstitutional treatment.
Breyer filed his own dissenting opinion, which Sotomayor and Kagan joined. They agreed with Roberts that there is no need for the court to act now. But in any event, Breyer added, because of what we know about how the virus is transmitted, particularly when it comes to the increased risk of transmission at indoor activities at which people are in close contact with one another for extended periods of time, the question whether the attendance limits violate the Constitution is “far from clear.”
Sotomayor also filed a separate dissenting opinion, which Kagan joined. In her view, the challengers’ cases were “easier” than last summer’s challenges by churches in California and Nevada to shut-down orders and attendance limits because Cuomo’s order treats houses of worship more favorably than comparable secular gatherings. In a pointed rebuttal to Gorsuch’s opinion, Sotomayor agreed that states “may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles,” she stressed, “are not at stake today.”
This post is also published on SCOTUSblog.