Why exactly was New York's COVID-19 regime not "neutral"?

The Court's analysis was really, really thin. I think this question will be answered in Fulton.


I have now had some time to digest Roman Catholic Diocese of Brooklyn v. Cuomo. Upon some reflection, the weakest part of the opinion is perhaps the most significant: why was New York's COVID-19 regime not "neutral"? This analysis very, very thin. And the majority does not really explain what it is doing. Much is left to implication. I am happy to draw these implications. But I suspect lower courts will decline to draw these implications, and stick with South Bay. And all they have to do is cite the critical sentence: "Because of the need to issue an order promptly, we provide only a brief summary of the reasons why immediate relief is essential."

First, the Court states "the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment." And how do we know that the regulations "single out houses of worship for especially harsh treatment"?

Second, the Court compares Houses of Worship to other so-called "essential" businesses. For example, "acupuncture facilities, camp grounds, garages, as well as many whose services" do not have any occupancy caps. Moreover, the Court states that "factories and schools" are "treated less harshly" than houses of worship.

Third, this method of comparison is different from the comparator method from Chief's South Bay concurrence. In South Bay, Roberts compared the house of worship to "comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time." They key word is "comparable." The per curiam opinion does not require that the house of worship be "comparable" to other secular businesses. Are houses of worship comparable to "factories and schools"? Not really. If any secular businesses are treated more favorably, the government has the burden to demonstrate why house of worship are treated less favorably.

Fourth, the majority--to be frank--adopted Justice Kavanaugh's "most favored" right approach. Kavanaugh describes this approach in his concurrence:

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). 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.

I see very little daylight between actual operation of the per curiam opinion and the Kavanaugh concurrence. At least Kavanaugh had the temerity to say what he was doing. And Justice Sotomayor reamed him or it. She wrote, that Smith and Lukumi do not stand "for the proposition that states must justify treating even noncomparable secular institutions more favorably than houses of worship." Sotomayor was correct. But I don't think the current interpretation fo Smith will stand for long.

Perhaps the majority was unwilling to adopt this new conception of "neutrality" here. I earlier speculated that this shift may augur the outcome in Fulton. Perhaps that case will formally adopt the Kavanaugh model of neutrality. If so, it would make sense to avoid reaching such a broad conclusion in an unargued shadow docket case.

What will the lower courts do to determine neutrality? Compare house of worship to "comparable secular gatherings"? Or consider all secular gatherings, regardless of whether they were comparable. I think Diocese has rejected the requirement of comparableness. Now, the comparators are any exempted gatherings. Of course, that holding is not clear. And the Supreme Court will have to clean up the mess in a few months.

NEXT: Thursday Open Thread -- Thanksgiving Edition

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  1. Its Thanksgiving! I recognize you might not have much going on rn because of all the restrictions, but dude relax. I understand you just won a major victory before the court and want to celebrate it and talk about it ... but its a holiday. Enjoy the time off.

    1. Pot, kettle.

  2. Leftists were invoking their 1A rights when they broke lockdown for BLM protests...so methinks this is the old “what’s good for the goose is good for the gander” line of legal reasoning.

    1. And they got gassed and arrested by the thousands. Maybe the church folk need some pepper balls in the face too. Don't let BLM get all the love.

      1. That was just when it turned to violent protest. So Christians are fine but the Muslims in ISIS might have to change the way they worship if they want to avoid pepper spray or worse. 😉

        1. No violence, just simple failure to disperse. Everybody should get the same treatment.

          1. Satan is the big winner! The Night-Bringer never gets sick of winning!!

  3. First, the Court states "the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment." And how do we know that the regulations "single out houses of worship for especially harsh treatment"?

    The Court answers this in the next paragraph:

    In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of
    “essential” businesses includes things such as acupuncture
    facilities, camp grounds, garages, as well as many whose
    services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026. The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

    When you have special restrictions that by their terms apply to houses of worship, that is not neutral towards religion.

    Let's say State A has a 7% sales tax. It then adopts a special 14% sales tax on "religious items," however defined. Would that not be clearly a non-neutral law under Smith and Church of Lukumi Babalu Aye?

    1. I agree an explicit regulation on houses of worship typically would imply the regulation is not neutral. But in this case, I don't think that works because if you don't explicitly mention houses of worship no one will know which set of regulations apply to them.

      1. Why? You can make regulations about public gatherings.

        Same thing applies in the tax code. Non-profit organizations get special tax treatment. That includes churches, synagoges and mosques, but also many secular organizations.

        For that matter, the same thing applies in fire codes. Buildings are assessed for their maximum safe capacity, generally based on square footage. Makes no difference if it is a house of worship, a store or a theatre.

        1. The state has different levels of regulations for different public gatherings. I don't think a generic description (profit-based, capacity, etc.) suffices to easily establish which levels apply to which public gatherings. To me, enumerating them makes common sense without implying bias.

          1. By this rationale, governments could argue that houses of worship are sufficiently unique that the 1A permits literally any regulation that singles them out.

            1. I don't see how. What makes this case different is, motivated by practicality, just about every business that is granted some exemption is singled out.

          2. Josh R...Using Justice Kavenaugh's reasoning, why isn't a religious organization (like a synagogue) simply presumed to be a member of the favored class? Religious free exercise rights are specifically enumerated. If you want to make religions anything less than a favored class, you need a constitutional rationale to do that. That constitutional rationale is not in Governor Stunod's executive orders.

            The Governor's executive orders have no constitutional reason to treat religious organizations any differently (or worse) than a favored class. Was attendance at religious services a significant vector for Covid-19 spread? The US medical and public health data say no. Was there some special risk present at religious organization sites that made them especially susceptible to Covid-19 spread? No. Did religiously observant members of society contract Covid-19 at some elevated level? No.

            Now I will freely grant that I am personally biased on this question. How? I had a family member die and I could not say Kaddish, could not attend the funeral, could not conduct shiva properly. It was 45 days after this family member died that I could even say Kaddish properly. And I technically broke the law to do it. I simply had had enough. To this day, I have not heard a credible constitutional rationale justifying why my religious rituals around death and dying had to be suspended; but it was simply essential that I could go to a casino, a liquor store, or a marijuana dispensary.

            1. As Josh Blackman noted, Justice Kavanaugh's view conflicts with Smith and Lukumi. Blackman thinks and hopes, the Court will adopt that view in Fulton. I stand with Eugene in opposing that formulation.

              It is nonetheless possible for you to prevail within the bounds of Lukumi, without adopting Kavanaugh's proposed doctrine, by arguing that the state cannot justify exempting casinos while prohibiting you from mourning your loss. And the way you describe it may make a good argument for why your religious exercise may be just as essential as running a casino.

              1. It might be useful for proponents of seemingly limitless special privilege for religious claimants to recognize that as religion's influence in America continues to diminish the special treatment could become far less favorable.

                The pendulum seems destined to swing. To some degree, perhaps, like one of the torture devices implemented during one crusade or another.

                1. Have you considered the possibility of your antipathy towards religion skews your perspective of where on the pendulum your notion of so called over protection of religious liberties? Your antipathy and bigotry towards religion and religious beliefs of individuals you have self determined are beneath your intelligence for conservation may prevent you from having the requisite self awareness to make a judgment that would reflect beyond your insular bubble.

                2. Arthur....I don't see the litigants here asking for special privileges. They seek only to be treated as favorably as secular organizations. NY state made the 'essential' designation, not the litigants. Now they need to justify that decision wrt religious organizations. The constitution (and a boatload of SCOTUS precedent) make that pretty clear.

              2. Josh R...And yet, the state did choose to prohibit me from properly mourning my loss = It is nonetheless possible for you to prevail within the bounds of Lukumi, without adopting Kavanaugh’s proposed doctrine, by arguing that the state cannot justify exempting casinos while prohibiting you from mourning your loss.

                1. Under Lukumi, you win your case if the secular exemptions endanger the asserted government interests advanced by not allowing you to mourn.

    2. "In a red zone"

      The Red Zone is for shopping and acupuncture only. There is no praying in the red zone.

  4. How about it is not neutral because there are specific rules that apply to only Houses of Worship? See https://www1.nyc.gov/assets/doh/downloads/pdf/covid/covid-19-localized-restrictions.pdf and that it specifically identifies Houses of Worship. Further, why would Houses of Worship be different than schools?

  5. Why do clingers capitalize "Houses of Worship?"

    Other than illiteracy, I mean.

    1. Why capitalize? In a word, "respect " for religion.

    2. Thank you for that incisive legal comment. Helped everyone understand the debate in the Supreme Court over this case.

    3. Next you'll find out about the gold fringe on flags, and capitalized names, and punctuation in all its glory. Your education continues apace.

    4. Clingers in NYC aren't illiterate. The illiterate clingers are toothless, penniless, ignorant, gun-toting, Bible-thumping, Confederate-flag-waving, disability-check-collecting, inbred rednecks living deep in backwoods' Mississippi in their rusty trailers. The clingers in NYC are wealthy, modern, progressive, educated, and diverse.

  6. Based on the first Amendment, and the freedom of religion clause, I do think you need to grant houses of worship "most favored" status in terms of their protections.

    Calvary Chapel really should've gone the other way. The "Casinos open, churches closed" restriction was absurd, and really destroyed freedom of religion.

    1. Employment anti-discrimination laws typically exempt employers with fewer than 30 employees. I believe most-favored status implies that strict scrutiny is triggered to the law as applied an employer who has a religious objection to hiring gays. That strikes me as very wrong.

      1. "Employment anti-discrimination laws typically exempt employers with fewer than 30 employees." Incorrect, the number is much lower. But you miss the major point here. Which is this.

        If the Freedom of Religion, expressly written into the Bill of Rights can be so easily over written, and people effectively banned from their own houses of worship for months due to an epidemic...while casinos and bowling alleys are kept open.

        How easy do you think it would be to override other rights due to a pandemic or other "cause"... Rights like gay rights? If the gay community had a large epidemic coursing through their population, could the the gay community be selectively "rounded up" in order to suppress the transmission of the disease? Or would they have the right to be free?

        It's critically important to protect all of our rights, no matter whose they are. It's why the ALCU defends the free speech rights of neo-nazis (or used to) even though they disagreed with the speech. Because once the state infringes on one set of rights for one group of people, it's easier to start infringing on others...

        1. Of course, protecting our rights is critically important. However, you are begging the question of whether there is a right to a religious exemption from a law simply because that law has a secular exemption. Under current doctrine there isn't, and for the reason I gave there ought not be.

          1. Too extreme. You take the worst case imaginably possible, and extend it to justifying broad based discrimination against religion in all cases.

            This is like the arguments that allowing gay rights to exist would lead to churches being forced to have large gay weddings and priests forced to serve over the services. So, because of that potential extreme worst case scenario, gays shouldn't be allowed to have rights.

            1. Firstly, you are again begging the question when you say the current doctrine results in discrimination on the basis of religion. Secondly, I believe my example is likely to be typical and the religious objectors will win their cases.

  7. What we are seeing Is basically Police v. Newark. If you make ANY exception, the rule is neither universal nor generally applicable, and Smith doesn’t apply.

    That’s what “most favored business” status basically amounts to. If you except something else, tiu also have to except religion.

    The result leaves Smith in place, but only in the unusual case where there are no exceptions at all.

    1. Which in effect means Smith is gone.

      1. No, there are clear cases where Smith would still apply. They would just be generally applicable laws, that apply to all, without exception.

        1. Police v. Newark involved a Newark regulation prohibiting police officers from having beards. Alito, then a 3rd Circuit judge, found that since the regulation made an exception for medical conditions, it has to also make an exception for religious requirements.

          In other words, Police v. Newark was itself based on the idea that medical conditions don’t trump religion.

          Traditionally, compelling interests involve danger to the survival of society as a whole, not just things people feel really strongly about. From that perspective, a public pandemic is a more serious matter than an individual being unable to shave. However, Gorsuch points out that the things that are getting exempted can’t possibly be justified from a perspective of necessity for bare survival.

          I think his views could be stated in a more politic fashion and his tone is not helpful. I think a justice writing an opinion changing existing law should not use strident tones and his words should have been more measured.

          But I thjnk he’s basically right on the substance.

          1. If Gorsuch is correct, the plaintiffs can win under Lukumi without resorting to Poilce v. Newark.

  8. The regulations aren't neutral, they're Lawful Evil.

  9. The best line was in Gorsuch's concurring opinion. "Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical."

    1. It is so refreshing for justices to protect the rights of Satanists and Muslims...the days of Korematsu and Plessy and Dred Scott are looooong gone! Hail Satan!

  10. And has anyone here noticed that King Andy has said that it’s moot because the ruling only applies to the counties where the plaintiffs are located?

    Imagine if Trump had done something like this.

    1. HE would have won and Emmy of course.

  11. Have you considered the possibility of your antipathy towards religion skews your perspective of where on the pendulum your notion of so called over protection of religious liberties? Your antipathy and bigotry towards religion and religious beliefs of individuals you have self determined are beneath your intelligence for conservation may prevent you from having the requisite self awareness to make a judgment that would reflect beyond your insular bubble.

  12. "This analysis very, very thin."

    Josh write very, very fast.

  13. IMO this case was a close call, and even though I might have ruled differently I don't see the decision as particularly outrageous. It may be more significant for what it portends in terms of letting religious organizations evade laws than for the actual substance.

    I only hope the court's conservatives are as zealous about enforcing the Establishment Clause as they are about Free Exercise.

    1. We are. We just realize that the Establishment Clause prohibits Congress from creating a Church of America. Nothing more, nothing less.

  14. How do we know that the regulations single out houses of worship for especially harsh treatment?

    “Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.”


    “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.”

    Blackman’s second and third objections focus on whether attendance at houses of worship is “comparable” to other disallowed activities rather than on the closely related “neutrality” angle. This change of focus begs more than a few questions. What is the basis for comparison and ranking of various activities? Should that basis center on the perceived danger to the community in terms of its potential to spread covid or to some other commonality? If the state chooses to use measures of ranking and commonality that differ from the rationale for law (which is the protection of public health) and an enumerated right is then impaired, does this violate the constitutional right in question? When deciding/ranking which activities are essential, can a state decide that activities protected by certain enumerated rights are non-essential?

    I agree somewhat with Blackman’s fourth point regarding Kavanaugh’s dissent. However Kavanaugh states that his opinion is only with regard to a temporary in junction. While he apparently expects his current view to prevail in the future he is not foreclosing a different result when the court hears the case. Furthermore Sotomayor’s point elides the question of how activities are determined to be comparable or not. One can divy up a set many different ways based on various characteristics. If a particular characteristic is chosen we will get different subsets than when another characteristic is used as the measure of commonality.

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