‘Even In A Pandemic, the Constitution Cannot Be Put Away and Forgotten’

Right before Thanksgiving, the U.S. Supreme Court ruled against New York Gov. Andrew Cuomo blocking his executive order that would have limited worship services to ten people in “red zones” and 25 people in “orange zones.” 

Their ruling provides a stinging rebuke of Gov. Cuomo’s measures and offers a temporary injunction until the Second Circuit Court of Appeals can rule in December on the issue.

Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas were in the majority. Chief Justice John Roberts and Justices Stephen Beyer, Elana Kagan, and Sonia Sotomayor dissented. The Supreme Court reversed itself in previous similar cases that denied injunctions on COVID-19 restrictions impacting churches in California and Nevada by a five to four vote. 

Justice Barrett’s addition to the court replacing the late Justice Ruth Bader Ginsburg tipped the scales in the opposite direction. 

The unsigned majority opinion made several points as to why they provided injunctive relief for the Catholic Diocese of Brooklyn, Agudath Israel of America, and other houses of worship that find themselves under similar circumstances. 

The regulations are not neutral. 

“(T)he regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment,” they wrote.

Churches, mosques, synagogues, and temples are limited to ten people during worship services or other religious activities if they are located in a “red zone.” However, “essential” businesses can admit as many people as they wish. 

Likewise, in “orange zones,” worship services are limited to 25 people, while even “non-essential” businesses can allow as many people as they wish. 

These are restrictions that are far more strict than those applied in California and Nevada.

“These categorizations lead to troubling results. At the hearing in the District Court, a health department official testified about a large store in Brooklyn that could ‘literally have hundreds of people shopping there on any given day.’ Yet a nearby church or synagogue would be prohibited from al- lowing more than 10 or 25 people inside for a worship service.” they noted. 

“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,” the majority added. 

While preventing the spread of COVID-19 is a compelling state interest, the majority noted that Gov. Cuomo’s order is not “narrowly tailored.”

“Not only is there no evidence that the applicants have contributed to the spread of COVID–19 but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” they added. 

Gov. Cuomo’s restrictions cause irreparable harm.

“There can be no question that the challenged restrictions, if enforced, will cause irreparable harm,” the majority opinion reads. 

They noted that limiting attendance to ten or 25 will keep most of the church or synagogue membership from attending in person. Catholics cannot partake in communion while watching Mass at home. The essential traditions of the Orthodox Jewish faith also require personal attendance. 

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the majority wrote, quoting the Supreme Court’s plurality opinion in Elrod v. Burns in 1976.

Justice Gorsuch, in a concurring opinion, pointed out the harm it causes in the Orthodox Jewish community. 

“In the Orthodox Jewish community that limit might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum,” he wrote.

“In ‘orange zones,’ it’s not much different. Churches and synagogues are limited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and synagogues, which ordinarily hold hundreds. And the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services,” Justice Gorsuch added.

There is no public interest.

The majority noted that the state of New York failed to demonstrate that Diocese churches or Orthodox Jewish synagogues contributed to the spread of COVID-19. 

The state also did not demonstrate that public health would be harmed if less restrictive measures were required. 

“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,” the majority wrote.

Justice Gorsuch added in his concurring opinion, “The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all ‘essential’ while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”

He added this problem is not limited to New York, pointing back to the previous Supreme Court cases. 

Justice Gorsuch noted the Supreme Court had tolerated California and Nevada’s executive actions because of the “newness” of the disease. 

“At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” he wrote.

Looking at Chief Justice Roberts’ rationale in supporting California Gov. Gavin Newsom’s order, Justice Gorsuch pointed to “a particular judicial impulse to stay out of the way in times of crisis.” 

“But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do,” he added.

“It is time—past time—to make plain that, 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 concluded.