Late Wednesday night, the Supreme Court blocked enforcement of New York Gov. Andrew Cuomo's COVID-19 restrictions on "houses of worship" after concluding that his policy probably violates the First Amendment's guarantee of religious freedom. The Brooklyn churches and synagogues that challenged Cuomo' rules, which limit attendance at religious services to 10 people in "red" zones and 25 in "orange" zones, "have made a strong showing that the challenged restrictions violate 'the minimum requirement of neutrality' to religion," says the unsigned majority opinion.
This is the third time that the Court has considered applications for emergency injunctions against pandemic-inspired limits on religious gatherings. In the two earlier cases, involving restrictions imposed by California and Nevada, the Court said no. Those decisions were backed by Chief Justice John Roberts, along with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented both times. This time around, the replacement of Ginsburg with Amy Coney Barrett proved decisive, as the recently confirmed justice sided with Thomas et al. in granting the injunction sought by the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, which sued on behalf of the Orthodox synagogues it represents.
The Court has said the First Amendment's Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. But it also has said laws are presumptively unconstitutional when they discriminate against religion.
New York's restrictions "cannot be viewed as neutral because they single out houses of worship for especially harsh treatment," the majority says. In red zones, businesses deemed "essential"—including supermarkets, convenience stores, hardware stores, pet stores, liquor stores, laundromats, acupuncturists, banks, and various offices—operate without capacity limits. "The disparate treatment is even more striking in an orange zone," the Court notes. "While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit."
Those distinctions "lead to troubling results," the justices point out. "A health department official testified about a large store in Brooklyn that could 'literally
have hundreds of people shopping there on any given day,'" they say. "Yet a
nearby church or synagogue would be prohibited from allowing more than 10 or 25 people inside for a worship service. And the Governor has stated that factories and
schools have contributed to the spread of COVID–19, but they are treated less harshly than the Diocese's churches and Agudath Israel's synagogues, which have admirable safety records."
Since Cuomo's rules are not neutral, the Court says, they can be upheld only if they survive "strict scrutiny," which requires that they be "narrowly tailored" to serve a "compelling" state interest. "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,'" it says. "They are far more restrictive than any
COVID–related regulations that have previously come before 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."
Cuomo's order was prompted by COVID-19 clusters tied to some Haredi institutions in Brooklyn. But both Roman Catholic churches and synagogues affiliated with Agudath Israel in the borough have been carefully following COVID-19 safeguards, and neither have seen any outbreaks since reopening.
"Not only is there no evidence that the applicants have contributed to the spread of COVID–19," the Court says, "but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue." Under the challenged rules, the 10-person and 25-person limits apply regardless of a building's size. "It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows," the justices observe.
In a concurring opinion, Justice Gorsuch questions the relevance of Jacobson v. Massachusetts, a 1905 precedent often cited as a justification for COVID-19 restrictions. "Jacobson hardly supports cutting the Constitution loose during a pandemic," he says.
In that case, the Court rejected Henning Jacobson's argument that requiring him to be vaccinated against smallpox (or pay a fine for failing to do so) violated his right to "bodily integrity," which he said was protected by "substantive due process" under the 14th Amendment. The Court "essentially applied rational basis review," Gorsuch says, which is consistent with its current approach in 14th Amendment cases that do not involve a fundamental right or a suspect classification such as race. Here, by contrast, the Court's free exercise precedents require strict scrutiny, a much tougher test.
Gorsuch also notes that Jacobson, unlike the plaintiffs in this case, was not relying on a specifically enumerated right. "Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution's penumbras," he says, "it does not follow that the same fate should befall the textually explicit right to religious exercise."
Finally, Gorsuch says, New York's restrictions on religious services are notably harsher than the vaccine mandate to which Jacobson objected. "In Jacobson, individuals could accept the vaccine, pay the fine, or identify a basis for exemption," he notes. "The imposition on Mr. Jacobson's claimed right to bodily integrity, thus, was avoidable and relatively modest….Here, by contrast, the State has effectively sought to ban all traditional forms of worship in affected 'zones' whenever the Governor decrees and for as long as he chooses. Nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights. In fact, Jacobson explained that the challenged law survived only because it did not 'contravene the Constitution of the United States' or 'infringe any right granted or secured by that instrument.'"
Gorsuch, like Alito and Kavanaugh, is worried that the COVID-19 pandemic has become a rationale for suspending well-established constitutional rights. "Government is not free to disregard the First Amendment in times of crisis," he writes. "At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles….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—who has never been shy about questioning the government's position when he thinks it conflicts with what the Constitution requires, including cases where he has reached conclusions that should appeal to progressives—underlines a point made by American University law professor Lindsay Wiley and University of Texas at Austin law professor Stephen Vladeck earlier this year: Constitutional rights are not "suspended" during an emergency. "Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical," he writes. "We may not shelter in place when the Constitution is under attack. Things never go well when we do."
Writing in dissent, Roberts says there is no need to grant an injunction right now, because Cuomo recently changed the color coding of the neighborhoods where the plaintiffs' churches and synagogues are located. "None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions," he writes. "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." But as the majority notes, that mid-litigation switch does not eliminate the threat posed by the power Cuomo is asserting, since he can reimpose the original restrictions whenever he wants.
Breyer, joined by Kagan and Sotomayor, cites the same rationale for denying an injunction. But he also thinks "it's far from clear" that the original capacity caps, which "are indeed low," violate the Free Exercise Clause. "We have previously recognized that courts must grant elected officials 'broad' discretion when they 'undertake to act in areas fraught with medical and scientific uncertainties,'" he says, quoting Roberts' concurring opinion in the California case. "That is because the 'Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.'"
In a dissenting opinion joined by Kagan, Sotomayor questions the plaintiffs' argument that New York is treating houses of worship differently from secular venues that pose similar risks of virus transmission. The right comparison, she says, is not between religious services and the myriad secular activities that are not subject to occupancy limits. Rather, Sotomayor thinks, religious services are in the same class as "comparable secular gatherings" in theaters, lecture and music halls, and sports stadiums where "large groups of people gather in close proximity for extended periods of time." As long as a state does not treat those venues more leniently than churches and synagogues, Sotomayor says, its rules are neutral, and "that should be enough to decide this case."
Although that argument appeals to defenders of broad COVID-19 restrictions, it breaks down when you consider the reality of what New York is allowing vs. what it is prohibiting. "Large groups gather in close proximity for extended periods of time" in many of the businesses that New York has given more leeway than it allows houses of worship, including supermarkets, restaurants, factories, and big-box stores like Target.
"Even a pre-COVID Catholic Mass—typically lasting less than an hour on Sundays, less on weekdays—was shorter than many trips to a supermarket or big-box store, not to mention a nine-to-five office job," the Roman Catholic Diocese of Brooklyn notes. "Mass is now even shorter, thanks to measures undertaken proactively and voluntarily by the Diocese." As for "close proximity," that has been addressed by the physical distancing rules that the diocese and Agudath Israel both enforce.
Agudath Israel synagogues "have carefully and successfully complied with mask requirements, social distancing, and capacity constraints," the organization says. "Yet the Governor's guilt-by-religious-association restrictions have made it impossible for Applicants and their members to exercise their religious faith."
The plaintiffs in this case are prepared to follow the same rules that apply to secular establishments where the risk of virus transmission is similar. But they understandably object to rules that explicitly impose special burdens on houses of worship, especially when they are accompanied by rhetoric implying that the governor decided to target an entire religious community for the lapses of some members.
As Agudath Israel notes, Cuomo "threatened 'members of the ultra-Orthodox community' that '[i]f you do not agree to enforce the rules, then we'll close the [religious] institutions down.'" He described the COVID-19 cluster in Brooklyn as "predominantly an ultra-Orthodox cluster" and "identified 'the ultra-Orthodox community' as causing the 'problem,' putting any doubt regarding his religious targeting to rest."
Cuomo himself described his policy as "a fear-driven response," saying, "This is not a policy being written by a scalpel. This is a policy being cut by a hatchet." The Supreme Court is saying, as it has for many years, that more care is required when the government impedes religious freedom.