The Saratogian (Saratoga, NY)

High court blocks COVID lim­its on houses of wor­ship

- By JES­SICA GRESKO U.S. News · Religion · Discrimination · Justice · Human Rights · Society · Law · Washington · U.S. Supreme Court · New York City · Amy Coney Barrett · John Roberts · Ruth Bader Ginsburg · California · Nevada · Brooklyn · Israel · United States of America · Brooklyn · Queens · Queens College · Andrew Cuomo · Ruth

WASH­ING­TON » As coro­n­avirus cases surge again na­tion­wide the Supreme Court late Wed­nes­day barred New York from en­forc­ing cer­tain lim­its on at­ten­dance at churches and syn­a­gogues in ar­eas des­ig­nated as hard hit by the virus.

The jus­tices split 5- 4 with new Jus­tice Amy Coney Barrett in the ma­jor­ity. It was the con­ser­va­tive’s first pub­licly dis­cernible vote as a jus­tice. The court’s three lib­eral jus­tices and Chief Jus­tice John Roberts dis­sented.

The move was a shift for the court. Ear­lier this year, when Barrett’s lib­eral pre­de­ces­sor, Jus­tice Ruth Bader Gins­burg, was still on the court, the

jus­tices di­vided 5- 4 to leave in place pandemic-re­lated ca­pac­ity re­stric­tions af­fect­ing churches in Cal­i­for­nia and Ne­vada.

The cour t’s ac­tion Wed­nes­day could push New York to reeval­u­ate its re­stric­tions on houses of wor­ship in ar­eas des­ig­nated virus hot spots. But the im­pact of the court’s ac­tion is also muted be­cause the Catholic and Ortho­dox Jewish groups that sued to chal­lenge the re­stric­tions are no longer sub­ject to them.

The Dio­cese of Brook­lyn and Agu­dath Is­rael of Amer­ica have churches and syn­a­gogues in ar­eas of Brook­lyn and Queens pre­vi­ously des­ig­nated red and or­ange zones. In those red and or­ange zones, the state had capped at­ten­dance at houses of wor­ship at 10 and 25 peo­ple, re­spec­tively. But the those par­tic­u­lar ar­eas are now des­ig­nated as yel­low zones with less re­stric­tive rules nei­ther group chal­lenged.

The jus­tices acted on an emer­gency ba­sis, tem­po­rar­ily bar­ring New York from en­forc­ing the re­stric­tions against the groups while their law­suits con­tinue. In an un­signed opin­ion the court said the re­stric­tions “sin­gle out houses of wor­ship for es­pe­cially harsh treat­ment.”

“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 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 opin­ion said.

The opin­ion noted that in red zones, while a syn­a­gogue or church can­not ad­mit more than 10 peo­ple, busi­nesses deemed “es­sen­tial,” from gro­cery stores to pet shops, can re­main open with­out ca­pac­ity lim­its. And in or­ange zones, while syn­a­gogues and churches are capped at 25 peo­ple, “even non- es­sen­tial busi­nesses may de­cide for them­selves how many per­sons to ad­mit.”

Roberts, in dis­sent, wrote that there was “sim­ply no need” for the court’s ac­tion. “None of the houses of wor­ship iden­ti­fied in the ap­pli­ca­tions is now sub­ject to any fixed nu­mer­i­cal re­stric­tions,” he said, adding that New York’s 10 and 25 per­son caps “do see munduly re­stric­tive.”

“The Gov­er­nor might re­in­state the re­stric­tions. 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,” he wrote.

Roberts and four other jus­tices wrote separately to ex­plain their views. Barrett did not.

The court’s ac­tion was a vic­tory for the Ro­man Catholic Church and Ortho­dox Jewish syn­a­gogues that had sued to chal­lenge state re­stric­tions an­nounced by Gov. An­drew Cuomo on Oct. 6.

The Dio­cese of Brook­lyn, which cov­ers Brook­lyn and Queens, ar­gued houses of wor­ship were be­ing un­fairly sin­gled out by the gov­er­nor’s ex­ec­u­tive or­der. The dio­cese ar­gued it had pre­vi­ously op­er­ated safely by cap­ping at­ten­dance at 25% of a build­ing’s ca­pac­ity and tak­ing other mea­sures. Parts of Brook­lyn and Queens are now in yel­low zones where at­ten­dance at houses of wor­ship is capped at 50% of a build­ing’s ca­pac­ity, but the church is keep­ing at­ten­dance lower.

“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.”

Two lower courts had sided with New York in al­low­ing the re­stric­tions to re­main in place. New York had ar­gued that re­li­gious gath­er­ings were be­ing treated less re­stric­tively than sec­u­lar gath­er­ings that car­ried the same in­fec­tion risk, like con­certs and the­atri­cal per­for­mances. An email sent early Thurs­day by The As­so­ci­ated Press to the gov­er­nor’s of­fice seek­ing com­ment was not im­me­di­ately re­turned.

There are cur­rently sev­eral ar­eas in New York des­ig­nated or­ange zones but no red zones, ac­cord­ing to a state website that tracks ar­eas des­ig­nated as hot spots.

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