Amid the pandemic’s second wave, with daily national deaths reaching as high as three thousand, many states have passed stricter guidelines for gatherings and indoor occupancy. In New York, Democratic Governor Andrew Cuomo issued Executive Order 202.68, which established rules for maximum occupancy in non-essential meetings. The order designated certain locations as red, orange, and yellow “zones” depending on the level of avoidable damage the location poses to public safety. The zoning was determined mainly by projected hospital capacity, with 90 percent for a red zone and 85 percent for orange, and by average positive test rates in the area—4 percent for an orange zone, 3 percent for a yellow. This drew the ire of many churches and synagogues located in red and orange areas as they were forced to significantly limit the sizes of their congregations.
On November 25, the Supreme Court ordered a preliminary injunction against Cuomo in Roman Catholic Diocese of Brooklyn v. Cuomo, holding that this legislation violated the free exercise clause of the First Amendment. The narrow 5-4 decision marked one of the first times the court has addressed the delicate balance between public health and constitutional rights during the pandemic. This shift is largely due to the appointment of Justice Amy Coney Barrett in October, giving the Court a conservative majority. The decision shows how the Court’s perennial struggle to interpret the constitution within the confines of reality and a changing modern world has only been exacerbated by COVID-19.
The Court Upholds the Freedom of Religion
The plaintiffs, Roman Catholic Diocese of Brooklyn and Agudath Israel of America, an Orthodox Jewish advocacy organization, brought the case forward on the grounds that churches and synagogues had been overwhelmingly and unfairly placed in red zones, causing stricter limitations to be applied. Cuomo’s executive order mandated a ten- or twenty-five-person cap on places of worship in red and orange zones respectively. A majority of the diocese affected could seat at least five hundred people, with two even having the space for up to one thousand. Litigator Randy Mastro of Gibson, Dunn, and Crutcher LLP, who represented the petitioners, further argued that more lenient standards were being applied unfairly to secular businesses like liquor and hardware stores, which are considered essential under New York law.
The petitioners cited irreparable harm, as certain traditions like receiving communion and specific practices of the Orthodox Jewish faith require in-person attendance. The narrow majority decision focused on the apparent discriminatory nature of the executive order against houses of worship, staying specific to the facts of this particular case and leaving larger questions about the rights of religious communities unanswered.
Opinions issued by Justices Neil Gorsuch and Stephen Breyer highlighted the Court’s divisions on the case. Gorsuch, a Trump appointee who leans conservative, ruled with the Court majority and issued a passionate plea on behalf of the religious institutions, saying, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
Gorsuch stated that though he was understanding of the lifestyle changes imposed by COVID-19, the different treatment of places of worship as compared to businesses like laundromats and airports showed prejudice against religious institutions. He specifically took issue with the implication of the executive order that religious practices are non-essential to life and deserved stricter treatment compared to secular businesses. Gorsuch further argued that the pandemic was no longer in its initial stages, when there was a dearth of information, and that continuing to defer to governors was not reasonable practice for the Court. This represents a more strict interpretation of the Constitution that favors complete freedoms with regards to the First Amendment.
In contrast, Breyer argued that one should temporarily defer to voices of science and prioritizing public safety in times of unprecedented crisis. A major point of contention was that Cuomo redistricted the disease hotspots between the time of the injunction’s filing and the Supreme Court’s holding, making the decision impractical in the dissenting justices’ perspectives. Breyer further stressed that injunctions are considered “extraordinary remedies” to be saved for circumstances in which the restrictions being imposed are obviously too stringent, which he said the petitioners could not prove given the serious health threat posed by indoor congregations of groups.
The Court Breaks From Precedent on Pandemic-Era Gatherings
Breyer, who was joined by Justices Elena Kagan and Sonia Sotomayor, cited in his dissent as precedent South Bay United Pentecostal Church v. Newsom. In the May 2020 case, the Court struck down a church’s application for injunctive relief against a California guideline limiting buildings to either 25 percent of max capacity or one hundred attendees. The principle of stare decisis, or utilizing past precedent to decide cases, has long been important in higher courts, making this decision a notable break from court practices.
The holding in South Bay United Pentecostal Church was further reaffirmed in the July 2020 case of Calvary Chapel Dayton Valley v. Sisolak, filed against the Nevada governor for prohibiting in-person worship of ten or more people where the Court again denied injunctive relief. Justices Samuel Alito, Brett Kavanaugh, Clarence Thomas and Gorsuch dissented from the denial of the application, with Kavanaugh adding “Unless the State provides a sufficient justification otherwise, it must place religious organizations in the favored or exempt category.”
These same four justices were joined in the majority decision for Roman Catholic Diocese of Brooklyn by Barrett, who replaced Justice Ruth Bader Ginsburg after her passing in September. This shift in the Supreme Court could signify that lower courts may be more open to religious groups hoping to gather in defiance of new public health laws. It also serves as a caution for governors across the nation as they work to create reopening plans. Illinois Governor J.B. Pritzker has rolled out a series of recommendations rather than mandates for places of worship, and New Hampshire Governor Chris Sununu followed suit with health suggestions for places of worship.
The COVID-19 pandemic has upended expectations and radically transformed average Americans’ lives. It is the Court’s duty to interpret the Constitution through whichever lens they see fit, trying to best represent the fundamental tenets of this nation as they were written in the 18th century. While the pandemic is not something the Founding Fathers could have foreseen as they signed those historic words into law, it appears the Court believes that the right to religious gatherings cannot be stripped away from people as the government chooses. This case marks the beginning of a more conservative era of the Supreme Court, with stricter interpretations of the Constitution and a greater emphasis on the preservation of original rights.
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