Washington • The Supreme Court late Wednesday barred restrictions on religious services in New York that Gov. Andrew Cuomo had imposed to combat 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.
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.
In an unsigned opinion, the majority said Cuomo’s restrictions violated 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.
“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,” Gorsuch wrote.
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 societywide 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.”
In a letter to the court last Thursday, Barbara Underwood, New York’s solicitor general, said that 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 Wednesday, 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.”
In a second dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said Cuomo’s restrictions were sensible.
“Free religious exercise is one of our most treasured and jealously guarded constitutional rights,” she wrote. “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,” Sotomayor wrote. “Because New York’s COVID-19 restrictions do just that, I respectfully dissent.”
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.”
In ruling against the diocese, Judge Nicholas Garaufis of the U.S. District Court in Brooklyn said the case was difficult. But he concluded that he would defer to the governor.
“If the court issues an injunction and the state is correct about the acuteness of the threat currently posed by hot-spot neighborhoods,” the judge wrote, “the result could be avoidable death on a massive scale like New Yorkers experienced in the spring.”
In refusing to block the governor’s order while the two appeals went forward, a divided three-judge panel of the 2nd U.S. Circuit Court of Appeals drew on Roberts’ concurring opinion in the California case. Since the restrictions on churches were less severe than those on comparable secular gatherings, the majority wrote in an unsigned opinion, they did not run afoul of constitutional protections for religious freedom.
In dissent, Judge Michael Park said Cuomo’s order discriminated against houses of worship because it allowed businesses like liquor stores and pet shops to remain open without capacity restrictions.
Roberts rejected a similar argument in the California case. The order there, he wrote, “exempts or 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.”
Park responded that the order in the California case, coming as it did in the context of an emergency application that was decided in summary fashion, had limited force as a precedent. Moreover, he wrote, it had been “decided during the early stages of the pandemic, when local governments were struggling to prevent the health care system from being overwhelmed.”
In asking the Supreme Court to step in, lawyers for the diocese argued that its “spacious churches” were safer than many “secular businesses that can open without restrictions, such as pet stores and broker’s offices and banks and bodegas.” An hourlong Mass, the diocese’s brief said, is “shorter than many trips to a supermarket or big-box store, not to mention a 9-to-5 job.”
Underwood responded that religious services pose special risks. “There is a documented history of religious gatherings serving as COVID-19 superspreader events,” she wrote.
Indoor religious services, Underwood wrote, “tend to involve large numbers of people from different households arriving simultaneously; congregating as an audience for an extended period of time to talk, sing or chant; and then leaving simultaneously — as well as the possibility that participants will mingle in close proximity throughout.”
Still, she wrote, religious services are subject to fewer restrictions than comparable secular ones. “Among other things, in both red and orange zones, casinos, bowling alleys, arcades, movie theaters and fitness centers are closed completely,” she wrote.