Covid-19 caselaw is developing at a brisk pace. The Constitution says nothing about pandemics, and it does not speak to emergencies in general, at least not in the context of civil rights such as equal protection or religious freedom. That's the theme of the latest ruling from the Second Circuit, which strikes down Gov. Cuomo's executive order that restricted the size of church and other religious congregations.
The case is Agudath Israel of America v. Cuomo, issued on December 28, only 10 days following oral argument. In October 2020, Cuomo issued an order that identified three zones, determined by the rate of Covid-19 infections. At issue in this case are the red and orange zones. In the red zones, non-essential gatherings are prohibited, restaurants can remain open for take-out only, and schools may continue with in-person instruction. Houses of worship have a 25% capacity limit or 10 people, whichever is fewer. In orange zones, non-essential gatherings can have up to 10 people, and gyms and tattoo parlors are closed. Restaurants can provide outdoor service, other businesses may operate without additional restrictions, and schools may remain open. But houses of worship have a 33% capacity limit or 25 people, whichever is fewer.
The Supreme Court has already entertained this issue on a couple of occasions, including in this case, holding the government to strict limits on how it can restrict religious gatherings. Following that lead, the Second Circuit (Livingston, Menashi and Park) hold the Governor to "strict scrutiny," which is a legal phrase that means the government cannot get away with certain restrictions without a compelling reason, and the challenged rule or order must be narrowly-tailored to satisfy that compelling interest. The Governor's order in this case fails strict scrutiny because it singles out houses of worship for restrictive in-person gatherings that do not apply to other establishments, including so-called essential services like liquor stores. While a facially-neutral limit on public gatherings might be constitutional, even if they have the effect of restricting religious observances, that's not on the table in this case. And, while some businesses (such as news media and certain retail stores) are deemed "essential," non-essential activities, such as religious worship, have greater restrictions.
The unequal treatment of religious and non-religious services creates a presumption that the distinction violates the Free Exercise Clause of the First Amendment, which protects the right to worship. But the Court of Appeals also says the restrictions are not sufficiently narrowly-tailored to get around the strict rules against these restrictions. The court says the restrictions stem from broad generalizations about church-going behavior, such as the assumption that people enter and leave the building together and remain in the building for long periods of time. But even if these generalizations are true, the Governor's order does not require masks or distancing, which might also reduce infections. The Court of Appeals notes that we cannot assume that churchgoers will ignore these alternative protective measures. For one of the two cases that are the subject of this appeal, the narrow-tailoring issue is sent back to the trial court to take that up in the first instance. But it looks like the Second Circuit has foreshadowed how that issue should turn out: against the Governor's order.
The Second Circuit wraps up with a discussion about the role of the courts in a public health emergency. I wonder if the court anticipates other judges borrowing this language in their own pandemic cases. The Second Circuit quotes from a recent Supreme Court ruling stating that the Constitution cannot be "cut . . . loose during a pandemic." While the court recognizes that regulating public health during a pandemic is a compelling government interest that would justify a strict governmental response, it also says the response must be carefully tailored in order to prevent any unnecessary infringement on constitutional rights.
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