Court strikes religious services limits
NYC covid-tied constraints seen as overstep
WASHINGTON — The Supreme Court late Wednesday barred restrictions on religious services in New York that Gov. Andrew Cuomo had imposed to combat spread of the coronavirus.
The vote was 5-4, with Chief Justice John Roberts and the court’s three liberal members in dissent. The order was the first in which the court’s newest member, Justice Amy Coney Barrett, played a decisive role.
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten,” the unsigned opinion said. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The court’s ruling was at odds with earlier ones concerning churches in California and Nevada. In those cases, decided in May and July, the court allowed the states’ governors to restrict attendance at religious services.
The Supreme Court’s membership has changed since then, with Barrett succeeding Justice Ruth Bader Ginsburg, who died in September. The vote in the earlier cases was also 5-4, but in the opposite direction, with Roberts joining Ginsburg and the other three members of what was then the court’s four-member liberal wing.
This time the majority said Cuomo’s restrictions vi
olated the First Amendment’s protection of the free exercise of religion.
In a concurring opinion, Justice Neil Gorsuch said Cuomo had treated secular activities more favorably than religious ones.
Gorsuch’s solo opinion was at times scathing and sarcastic. He noted that Cuomo had designated, among others, hardware stores, acupuncturists, liquor stores and bicycle repair shops as essential businesses not subject to the most strict limits.
“So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “Who knew public health would so perfectly align with secular convenience?”
The court’s order addressed two applications: one filed by the Roman Catholic Diocese of Brooklyn, the other by two synagogues, an Orthodox Jewish organization and two individuals. The applications both said that Cuomo’s restrictions violated constitutional protections for the free exercise of religion, and the one from the synagogues added that Cuomo had “singled out a particular religion for blame and retribution for an uptick in a society-wide pandemic.”
The restrictions are strict. In shifting “red zones,” where the coronavirus risk is highest, no more than 10 people may attend religious services. In slightly less dangerous “orange zones,” which are also fluid, attendance is capped at 25. This applies even to churches that can seat more than 1,000 people.
The measures were prompted in large part by rising coronavirus cases in Orthodox Jewish areas but covered all “houses of worship.”
PARTISANSHIP CLAIM
Cuomo accused the court of partisanship, suggesting the ruling reflected the influence of the three conservative justices nominated by President Donald Trump in the past four years.
“You have a different court, and I think that was the statement that the court was making,” Cuomo, a third-term Democrat, said Thursday. “We know who he appointed to the court. We know their ideology.”
The decision represented something of a Thanksgiving gift for Catholic and Orthodox Jewish leaders, who had blasted Cuomo’s rules as a profound and unfair restriction.
“I have said from the beginning the restrictions imposed by Gov. Cuomo were an overreach that did not take into account the size of our churches or the safety protocols that have kept parishioners safe,” Bishop Nicholas DiMarzio of Brooklyn said, noting that Catholics had adhered to safety protocols at Mass since the virus first emerged in New York in March.
Cuomo insisted that the decision “doesn’t have any practical effect” because the restrictions on religious services in Brooklyn, as well as similar ones in Queens and the city’s northern suburbs, were eased after positive test rates in those areas declined.
The case’s immediate impact was narrow, setting aside two specific restrictions on attendance at houses of worship — regardless of denomination — that Cuomo enacted in early October. Those rules were put in place after a surge of cases in several Orthodox Jewish communities in Brooklyn, Queens and two suburban counties.
Cuomo maintains that those outbreaks have since been brought under control, in large part by the measures that the court struck down. Cuomo has issued dozens of executive orders since the state’s first reported case in March, and those remain untouched, including other restrictions on religious gatherings.
On the other side, “we are extremely grateful that the Supreme Court has acted so swiftly and decisively to protect one of our most fundamental constitutional rights — the free exercise of religion,” said Randy Mastro, an attorney for the diocese, in a statement.
Avi Schick, an attorney for Agudath Israel of America, wrote in an email: “This is an historic victory. This landmark decision will ensure that religious practices and religious institutions will be protected from government edicts that do not treat religion with the respect demanded by the Constitution.”
‘FLUID NATURE’
In a letter to the court last week, Barbara Underwood, New York’s solicitor general, said revisions to the color-coded zones effective Friday meant that “none of the diocese’s churches will be affected by the gathering-size limits it seeks to enjoin.” The next day, she told the court that the two synagogues were also no longer subject to the challenged restrictions.
Lawyers for the diocese questioned “the fluid nature of these modifications and the curious timing of the governor’s latest modification,” and they urged the court to decide the case notwithstanding the revisions.
Lawyers for the synagogues said Cuomo should not be allowed to “feign retreat” when “he retains the unfettered discretion to reimpose those restrictions on them at a moment’s notice.”
In a dissenting opinion, Roberts said the court had acted rashly.
“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” he wrote, adding, “It is not necessary, however, for us to rule on that serious and difficult question at this time.”
“The governor might reinstate the restrictions,” he wrote. “But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the governor does reinstate the numerical restrictions the applicants can return to this court, and we could act quickly on their renewed applications.”
Justice Stephen Breyer, writing for fellow liberals Sonia Sotomayor and Elena Kagan, said it was a strange time for the court to be offering relief.
“The number of new confirmed cases per day is now higher than it has ever been,” Breyer wrote, and New York has accounted for 26,000 of the more than 250,000 deaths nationwide.
“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges,” Breyer wrote.
Sotomayor was more pointed in a separate opinion joined by Kagan: “Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
LARGER QUESTION
The larger question in the two cases was whether government officials or judges should strike the balance between public health and religious exercise.
In a concurring opinion in the case from California in May, Roberts wrote that government officials should not “be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people.”
But in a recent speech to a conservative legal group, Justice Samuel Alito, who had dissented in the earlier cases, said courts had an important role to play in protecting religious freedom, pandemic or no.
“Whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes,” Alito said this month, rejecting the view that “whenever there is an emergency, executive officials have unlimited, unreviewable discretion.”