The other day, I wrote about a Second Circuit ruling that upheld Governor Cuomo's Covid-19 executive order limiting the size of religious gatherings, rejecting a constitutional challenge that the order violated religious freedoms. That Second Circuit ruling has now been stayed by the Supreme Court, which holds that the order likely violates the Free Exercise Clause of the First Amendment.
The case is Roman Catholic Diocese v. Cuomo, issued on November 25. While you were preparing Thanksgiving dinner, the Justices were working on this case. The Court summarizes the issue as follows:
[Plaintiffs] seek relief from an Executive Order issued by the Governor of New York that imposes very severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. The two applica- tions, one filed by the Roman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated entities, contend that these restrictions violate the Free Exercise Clause of the First Amendment, and they ask us to enjoin enforcement of the restrictions while they pursue appellate review.
Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.
To win an injunction in the Supreme Court, you have to show (1) you will likely win the case and (2) without the injunction, you will suffer irreparable harm that cannot be undone even if you ultimately win the case a year from now. Injunctions are not easy to win, as you are asking the court to declare preliminary victory at the outset of the case.
By a 5-4 margin, the Supreme Court says the religious plaintiffs are likely to win the case. The Justices say the executive order singles out houses of worship "for especially harsh treatment." How so?
In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.
When the government singles out religion in issuing regulations, it must show these restrictions are necessary to satisfy a "compelling" interest and that they are narrowly-tailored. That did not happen here, the Court says.
Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.” They are far more restrictive than any COVID–related regulations that have previously come be- fore the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.
Since the denial of constitutional rights even for a limited period of time creates irreparable harm, the religious plaintiffs easily satisfy that standard as well.
The Court sums up this way:
Members of this Court are not public health experts, and we should respect the judgment of those with special exper- tise 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 four dissenters include the liberal Justices (Sotomayor, Kagan, and Breyer) and Chief Justice Roberts, who write that since the Governor has since revised the regulations, this case is moot. The majority says the case is not really moot because the restrictions could resurface at a later date. On the substantive issue, Justice Sotomayor writes that there really is no discrimination on the basis of religion because the executive order treats everyone the same when it comes to public gatherings, where large groups of people are more likely to infect each other. That is different from more generous rules guiding retail establishments, which do not typically attract large groups of people.
New York applies “[s]imilar or more severe restrictions . . . to comparable secular gatherings, including lectures, con- certs, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” Likewise, New York “treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” That should be enough to decide this case.
. . .
Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives.
The newest Justice, Amy Coney Barrett, voted with the majority. Since Justice Barrett replaced Justice Ginsburg, who probably would have voted the other way on this issue, this final Trump appointment to the Supreme Court is already having consequences for constitutional law.
I was telling someone the other day that constitutional law is interesting because every case is a puzzle, and there are technically no right or wrong answers in that way that math may only have one right answer to a problem. Constitutional law is in the eye of the beholder. The Free Exercise Clause on its own terms says nothing about how courts should interpret and enforce it. We leave that to judges. In any 5-4 ruling, both sides may have a good point. But five votes wins and four votes loses. Had this case arisen a year ago, the religious plaintiffs would have lost. Had Justice Ginsburg lived, same result.
Every few years, the Court seems to adopt a legal issue that predominates its rulings. In the 1950s and 1960s, it was school segregation and the rights of criminal defendants. During the Vietnam War years, we have First Amendment cases involving the rights of antiwar protesters. In the 1970s, we had a series of due process cases that rewrote the standard for general governmental fairness in decision making. And so on. The current Supreme Court is on a mission to strengthen religious freedoms under the Constitution. This case highlights that trend.
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