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Roman Catholic Diocese Part III: The Court Rejects the "Comparator" Approach to the Free Exercise Clause

But the per curiam opinion stops short of adopting Justice Kavanaugh's "most favored right" framework.

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This post is the third installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay "superprecedent." Part II focused on Jacobson v. Massachusetts.

Diocese majority

The Chief Justices's South Bay concurrence established a predictable, and easy to apply test with respect to the Free Exercise Clause. Justice Sotomayor described that test in her dissent:

South Bay and Calvary Chapel provided a clear and workable rule to state officials seeking to control the spread of COVID–19: They may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict.

The Diocese majority rejects the comparator approach. Indeed, the Court tweaks what "neutrality" means. I think this analysis may augur the future of Fulton. But the Court stops short of adopting Justice Kavanaugh's "most favored right" standard. Let's walk through the Court's analysis.

First, the Court hints at Agudath Israel's targeting arguments.

As noted by the dissent in the court below, statements made in connection with the challenged rules can be viewed as targeting the "'ultra-Orthodox [Jewish] community.'" (Park, J., dissenting). But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment

But the Court quickly abandons the targeting argument. I had some concerns that the Court would adopt a Masterpiece-style analysis in light of Governor Cuomo's comments about orthodox Jews. That ruling would not have extended beyond New York.

In dissent, Justice Sotomayor drew an analogy to Trump v. Hawaii. How could Cuomo's statements be targeting if Trump's statements were not targeting?

The Governor's comments simply do not warrant an application of strict scrutiny under this Court's precedents. Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a "Muslim Ban," originally conceived of as a "'total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on.'" Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 27). If the President's statements did not show "that the challenged restrictions violate the 'minimum requirement of neutrality' to religion," ante, at 2 (quoting Lukumi, 508 U. S., at 533), it is hard to see how Governor Cuomo's do.

New York's lawyer actually cited Trump v. Hawaii before the District Court to defend Cuomo's statements.

Second, the Court found that New York's orders are not "neutral." Therefore Smith's rational basis test does not apply. Rather, strict scrutiny applies.

Because the challenged restrictions are not "neutral" and of "general applicability," they must satisfy "strict scrutiny," and this means that they must be "narrowly tailored" to serve a "compelling" state interest.

Third, the Court ruled that New York's approach is not "narrowly-tailored."

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."

Fourth, the Court tried to reconcile its opinion with South Bay. But it did so in a very subtle way. The majority explained that the New York orders were far more "restrictive" than the orders at issue in South Bay. But the Court did not say that the South Bay order was neutral. In other words, the per curiam does not embrace the core element of Chief Justice Roberts's comparator approach:

[New York's orders] are far more restrictive than any COVID–related regulations that have previously come before the Court,2 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.

FN2: See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) (directive limiting in-person worship services to 50 people); South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020) (Executive Order limiting in-person worship to 25% capacity or 100 people, whichever was lower).

This footnote may have been designed to coax the Chief to join the per curiam opinion. It would have given him an easy out. But he didn't.

Justice Kavanaugh's concurrence extended a similar olive branch to the Chief. He wrote:

To begin with, New York's 10-person and 25-person caps on attendance at religious services in red and orange zones (which are areas where COVID–19 is more prevalent) are much more severe than most other States' restrictions, including the California and Nevada limits at issue in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020). In South Bay, houses of worship were limited to 100 people (or, in buildings with capacity of under 400, to 25% of capacity). And in Calvary, houses of worship were limited to 50 people. New York has gone much further.

Fifth, the Court faults New York for not adopting "other less restrictive rules" to "minimize the risk to those attending religious services." For example, "the maximum attendance at a religious service could be tied to the size of the church or synagogue." The Churches and synagogues can seat hundreds of people. The Court writes, "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." Moreover, the Court placed the burden on New York to "show[] that public health would be imperiled if less restrictive measures were imposed." Critically, the burden is on the government to justify this imposition on the Free Exercise of religion. The challengers do not bear that burden.

Sixth, the Court explains that other less-restrictive means--such as watching services on Zoom--are not acceptable.

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.

This passage is a direct rebuke of Judge Easterbrook, who wrote that Zoom services are a suitable substitute:

Reducing the rate of transmission would not be much use if people starved or could not get medicine. That's also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet. Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.

In June, I wrote:

"Churches can feed the spirit in other ways." What hubris! Houses of worship have been feeding the spirit long before the ink on our Constitution dried. For sure, some houses of worship have moved onto Zoom, some with alacrity, others with regret. But Easterbrook should not pretend for a moment these virtual services are sufficient to "feed the spirit."

Justice Barrett cast the deciding vote to render her former colleague's conclusion bad law.

After eight months of judicial obeisance, this analysis is a breath of fresh air. When enumerated rights are at issue, the Government needs to do more than put forward implausible justifications for its policies. Now, judges will have to do better than wield a rubber stamp.

Seventh, the Court adopted the relevant test:

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise 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. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.

"Serious examination." That is the new test for all lower courts to follow. "Serious examination."

Justice Kavanaugh's concurrence

Justice Kavanaugh wrote separately. He largely reiterated his position from Calvary Chapel. I suspect Justice Alito, who wrote the principal Calvary Chapel dissent, wrote the Diocese per curiam opinion. Alito did not go along with Kavanaugh's framework in Calvary Chapel, and he does not do so in Diocese.

First, Justice Kavanaugh repeats his view that the Free Exercise of Religion should be considered the "most favored" right.

The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court's precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884; see also Calvary, 591 U. S., at ___. (KAVANAUGH, J., dissenting from denial of application for injunctive relief ) (slip op., at 7).

Second, under Justice Kavanaugh's approach, the government--and not the challenger--has the burden:

Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses.See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884. The State has not done so.

In dissent, Justice Sotomayor calls out Justice Kavanaugh for developing a new standard.

JUSTICE KAVANAUGH cites Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 537–538 (1993), and Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 884 (1990), for the proposition that states must justify treating even noncomparable secular institutions more favorably than houses of worship. Ante, at 2 (concurring opinion). But those cases created no such rule. Lukumi struck down a law that allowed animals to be killed for almost any purpose other thananimal sacrifice, on the ground that the law was a " 'religious gerrymander' " targeted at the Santeria faith. 508 U. S., at 535. Smith is even farther afield, standing for the entirely inapposite proposition that "the right of free exercise does not relieve an individual of the obligation tocomply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." 494 U. S., at 879 (internal quotation marks omitted).

Here, Justice Sotomayor is correct. I like Justice Kavanaugh's approach, but he is moving beyond Smith.

Third, Justice Kavanaugh tries to extend an olive branch to Chief Justice Roberts. He agrees with Roberts's dissent:

For those reasons, I agree with THE CHIEF JUSTICE that New York's "[n]umerical capacity limits of 10 and 25 people . . . seem unduly restrictive" and that "it may well be thatsuch restrictions violate the Free Exercise Clause."

And Justice Kavanaugh distinguished Diocese from South Bay and Calvary Chapel:

In light of the devastating pandemic, I do not doubt theState's authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake. To reiterate, New York's restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, and much more severe than the restrictions that most other States are imposing on attendance at religious services. And New York's restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.

I think this conciliatory approach is far more effective than Justice Gorsuch's hostility. Roberts is no longer the 5th vote. He does not need to be appeased, but he can be worked with.

Chief Justice Roberts's dissent

The Chief's opinion did not turn on the Free Exercise Clause. He focused mostly on the equities, which I will write about in a later post.

Yet, he seemed sympathetic to Diocese's claim on the merits. He wrote:

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.

And the Chief favorably cites Justice Kavanaugh:

As noted, the challenged restrictions raise serious concerns under the Constitution, and I agree with JUSTICE KAVANAUGH that they are distinguishable from those we considered in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020). See ante, at 1, 3–4 (concurring opinion).

Justice Breyer's dissent

Justice Breyer has a unique soft spot for people of faith. He seems to show some sympathy to the Diocese and Agudath Israel. He refers to the orders as "severe restrictions." And he writes that the occupancy "numbers are indeed low." But whether those low number is unconstitutional is "far from clear" in the unique context of this request for an injunction pending appeal.

Here, we consider severe restrictions. Those restrictions limit the number of persons who can attend a religious service to 10 and 25 congregants(irrespective of mask-wearing and social distancing). And those numbers are indeed low. But whether, in present circumstances, those low numbers violate the Constitution's Free Exercise Clause is far from clear, and, in my view, the applicants must make such a showing here to show that they are entitled to "the extraordinary remedy of injunction." Ibid. (internal quotation marks omitted).

How would Justice Breyer handle this case if it arose on a motion for summary judgment, rather than in an injunctive posture? I'm not sure.

Justice Sotomayor's dissent seems at odds with Justice Breyer. I'm not sure how she, and Justice Kagan, joined the Breyer opinion. Justice Sotomayor wrote:

In truth, this case is easier than South Bay and Calvary Chapel. While the state regulations in those cases generally applied the same rules to houses of worship and secular institutions where people congregate in large groups, New York treats houses of worship far more favorably than their secular comparators. . . .

And whereas the restrictions in South Bay and Calvary Chapel applied statewide, New York's fixed-capacity restrictions apply only in specially designated areas experiencing a surge in COVID–19 cases.

I will have much more to say about the case in a subsequent post.