The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This post is the sixth 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. Part III focused on the Free Exercise Clause. Part IV focused on mootness. Part V focused on the distinction between "essential" and "non-essential" services.
What happens now? This case arose in a very unique context. The Diocese and Agudath Israel sought an injunction pending the Second Circuit's disposition of the appeal. Here is how the Court described its remedy in the Diocese case:
Respondent is enjoined from enforcing Executive Order 202.68's 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
The Court issued a similar order in the Agudath Israel case:
Respondent is enjoined from enforcing Executive Order 202.68's 10-and 25-person occupancy limits on applicants, including Agudath Israel of America's current New York-based affiliates, pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
Justice Kavanaugh's concurrence offered a more succinct version of the order:
I vote to grant the applications of the Roman Catholic Diocese of Brooklyn and Agudath Israel of America for temporary injunctions against New York's 10-person and 25- person caps on attendance at religious services. On this record, temporary injunctions are warranted because New York's severe caps on attendance at religious services likely violate the First Amendment. Importantly, the Court's orders today are not final decisions on the merits. Instead, the Court simply grants temporary injunctive relief until the Court of Appeals in December, and then this Court asappropriate, can more fully consider the merits.
But at present, the 10- and 25- person occupancy limits do not currently apply to the applicants. So does anything actually change?
According to Governor Cuomo, nothing changes. From the New York Times:
Mr. Cuomo, a third-term Democrat, insisted that the 5-4 decision "doesn't have any practical effect" because the restrictions on religious services in Brooklyn, as well as similar ones in Queens and the city's northern suburbs, had since been eased after the positive test rates in those areas had declined.
But the 10- and 25-person limits are in effect for other parts of New York, including my hometown of Staten Island. Cuomo's counsel argued that the Court's order did not apply statewide, but only with respect to the applicants in Brooklyn:
After Mr. Cuomo's remarks, Beth Garvey, his legal counsel, said that the state believed the court's opinion affected only the now-lapsed restrictions in Brooklyn, and that the other six zones would remain intact. Still, she added that officials would "be looking around the state at the other zones" and evaluating capacity restrictions in the most infected areas, also suggesting the state would continue to argue the case at a lower court level.
Here, Cuomo is arguing against a statewide injunction. My general view is that relief must be limited to the parties. But this decision has set an important new precedent (assuming the shadow docket can even establish precedents). And other courts will now have to follow that precedent.
What will Cuomo do? Justice Breyer offered some advice in his dissent:
I add that, in my view, the Court of Appeals will, and should, act expeditiously. The State of New York will, and should, seek ways of appropriately recognizing the religious interests here at issue without risking harm to the health and safety of the people of New York. But I see no practical need to issue an injunction to achieve these objectives.
If I had to guess, Cuomo will eliminate the hard cap, and peg the number of attendees to the size of the venue. Maybe 10 or 20% of the occupancy limit? A temple that holds at thousand people can safely hold 100 worshippers. Cuomo should have taken this approach at the outset. Of course, if Cuomo does nothing, then temples and churches can meet without any occupancy limit. [Update: Upon further reflection, I think there are other restrictions on houses of worship that were not based on the challenged microcluster program, that would remain in effect]. He will take some temporary measure.
The Second Circuit will probably rule by the end of the year. At which point, the Supreme Court can grant certiorari, and maybe argue the case by March or April. At that point, the case will be squarely presented before the Court, outside the context of an injunction pending appeal. And, I think, the Chief would rule for the Diocese.