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by Causes | 11.26.20

What’s the story?

In a 5-4 decision issued Wednesday night, the Supreme Court of the U.S. granted injunctive relief to the Catholic Church and Jewish synagogues that had their ability to host worshipers restricted by New York Gov. Andrew Cuomo (D) while the case is heard on the merits.
The case, known as Roman Catholic Diocese of Brooklyn v. Cuomo, was considered along with a similar case, Agudath Israel of America v. Cuomo. Both cases concerned an executive order issued by Cuomo, which imposed severe restrictions on attendance at religious services by limiting attendance to 10 persons in “red” zones and 25 in “orange” zones.
The plaintiffs allege that Cuomo’s restrictions violate the Free Exercise Clause of the First Amendment, and cited remarks made by the governor which indicated he was targeting the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to include heavily Orthodox areas. Both the Catholic and Jewish places of worship had operated at 25% or 33% capacity under COVID-19 guidelines for months without incident.

What did the justices say?

The majority opinion was unsigned, and could have been authored by Justice Clarence Thomas, Justice Samuel Alito, or Justice Amy Coney Barrett. It was joined by Justice Neil Gorsuch and Justice Brett Kavanaugh (who each authored concurring opinions) and concluded that the First Amendment freedoms of Catholic and Jewish worshipers would be irreparably damaged by Cuomo’s order:

“There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.”

Chief Justice John Roberts dissented on procedural grounds, but indicated that the plaintiffs could prevail on the merits if Cuomo reinstituted the restrictions on places of worship:

“After the Diocese and Agudath Israel filed their applications, the Governor revised the designations of the affected areas. None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions. At these locations, the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief they currently seek. Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause. It is not necessary, however, for us to rule on that serious and difficult question at the time. 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.”

Justice Stephen Breyer wrote a dissent that was joined by the Court’s two other liberal justices, Justice Sonia Sotomayor (who also wrote her own dissent) and Justice Elena Kagan. Breyer’s opinion struck a similar note to the chief justice’s:

“The specific applicant houses of worship are now in yellow zones where they can hold services up to 50% of maximum capacity. And the applicants do not challenge any yellow zone restrictions, as the conditions in the yellow zone provide them with more than the relief they asked for in their applications. Instead, the applicants point out that the State might reimpose the red or orange zone restrictions in the future. But, were that to occur, they could refile their applications here, by letter brief if necessary. And this Court, if necessary, could then decide the matter in a day or two, perhaps even in a few hours. Why should this Court act now without argument or full consideration in the ordinary course (and prior to the Court of Appeals’ consideration of the matter) when there is no legal or practical need for it to do so? I have found no convincing answer to that question.”

Justice Neil Gorsuch’s opinion concurring with the majority took issue with Breyer’s logic and countered:

“It is easy enough to say it would be a small thing to require the parties to “refile their applications” later. But none of us are rabbis wondering whether future services will be disrupted as the High Holy Days were, or priests preparing for Christmas. Nor may we discount the burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services. Whether this Court could decide a renewed application promptly is beside the point. The parties before us have already shown their entitlement to relief. Saying so now will establish clear legal rules and enable both sides to put their energy to productive use, rather than devoting it to endless emergency litigation. Saying so now will dispel, as well, misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

— Eric Revell

(Photo Credit: Synagogue: Librarygroover via Flickr / Creative Commons | Church: vagueonthehow via Flickr / Creative Commons | Cuomo: MTAPhotos via Flickr / Creative Commons)

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