The Supreme Court’s new conservative majority late Wednesday night sided with religious organizations in New York that said they were illegally targeted by pandemic-related restrictions imposed by Gov. Andrew M. Cuomo to combat spiking coronavirus cases.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” said the unsigned opinion granting a stay of the state’s orders. “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.”
The limits were severe, at times capping worship services at only 10 people. But the state said they were necessary to deal with “hot spots” of virus outbreaks.
The Supreme Court’s order was issued just before midnight, and five justices wrote separately.
Chief Justice John G. Roberts Jr., who had been the court’s pivotal member in previous emergency applications seeking relief from virus-related restrictions, dissented along with the court’s three liberal members.
He noted that while the court was considering the petitions, Cuomo, a Democrat, had eased the restrictions, and thus there was no need for the court to intervene now.
“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,” Roberts wrote for himself.
Justice Sonia Sotomayor said the court was intervening where it should not.
“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,” she wrote, adding, “Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
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The issue has divided the court before.
In past cases, Roberts agreed with conservative justices who turned down petitions from prisoners seeking intervention, allowing local corrections officials to set the rules for dealing with the virus.
But Roberts sided with the liberals, when Ginsburg was alive, to leave in place restrictions in California and Nevada that imposed strict limits on in-person services at houses of worship.
In the California case, Roberts wrote that fast-changing conditions meant the courts should defer to local officials charged with protecting the public. They “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,” he wrote.
But the court’s more conservative justices said it violated the Constitution for local officials to impose more drastic restrictions on houses of worship than on businesses considered essential.
In a speech to the conservative Federalist Society earlier this month, Justice Samuel A. Alito Jr. amplified his objections, saying the pandemic “has resulted in previously unimaginable restrictions on individual liberty.”
He continued: “This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”
Justice Neil M. Gorsuch, another Trump appointee to the court, took pointed aim at Roberts’s opinion in the California case and declared that it should no longer guide lower courts when weighing pandemic-related restrictions on religious services.
“Courts must resume applying the Free Exercise Clause,” Gorsuch wrote. “Today, a majority of the Court makes this plain.”
He said the order should dispel “misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.”
The Roman Catholic Diocese of Brooklyn and Jewish organizations led by Agudath Israel challenged Cuomo’s system of imposing drastic restrictions on certain neighborhoods when coronavirus cases spike.
Under Cuomo’s plan, in areas designated “red zones,” where the virus risk is highest, worship services are capped at 10 people. At the next level, “orange zones,” there is an attendance cap of 25. The size of the facility does not factor into the capacity limit.
The diocese said in its petition that the plan subjects “houses of worship alone” to “onerous fixed-capacity caps while permitting a host of secular businesses to remain open in ‘red’ and ‘orange’ zones without any restrictions whatsoever.”
“The result is that Target and Staples can host hundreds of shoppers at a time, and brokers can spend 40 hours per week working and hosting customers in poorly ventilated office buildings, but Catholics cannot attend a 45-minute Mass,” the petition said.
Cuomo said in announcing the restrictions that failure by some Orthodox Jewish groups to abide by lesser restrictions turned the surrounding neighborhoods into “hot spots,” where temporary drastic measures were needed.
Agudath Israel, which describes itself as an “umbrella organization for Orthodox Jewry,” said Cuomo’s words show why the restrictions are unconstitutional.
“This case is the first time in living memory where a state governor has drawn targets on a map over neighborhoods of a discrete religious minority” to allay “the majority’s ‘fears’ that this minority was deepening a national crisis,” the group said in its petition to the Supreme Court.
“This court should not permit such remarkable scapegoating of a religious minority to stand.”
New York responded that the restrictions are temporary and changing based on conditions. When coronavirus cases spike, the restrictions are put in place, and then removed when conditions improve.
For instance, the state said the designations had been changed since the organizations filed petitions with the Supreme Court.
“At this time, there are no red or orange zones in Brooklyn or in Queens — or indeed anywhere in New York City — only yellow zones,” the state said in its response. None of the churches or synagogues face the toughest restrictions.
And the restrictions are lessened for houses of worship in other zones. In the next level, “yellow zones,” nonessential gatherings are limited to 25 people, but houses of worship are restricted to 50 percent of capacity — more than what the diocese even requested.
Actually, the state argued, it has opted to treat religion more favorably.
“Rather than prohibit houses of worship located in red and orange zones from hosting gatherings altogether, [Cuomo’s order] allows such gatherings to occur, subject to limits on their size,” the brief said.
“The order thus accords preferential treatment to religious gatherings in houses of worship, as compared with secular activities that present a similar or greater degree of risk of COVID-19 spread.”
Lower courts sided with the state, denying the emergency relief sought by the religious groups.
The cases are Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel v. Cuomo.