[guest post by JVW]
The Supreme Court, by a 5-4 ruling, yesterday placed an injunction upon New York State and the office of Governor Andrew Cuomo’s ability to enforce the limitations on religious gatherings that they had imposed in response to coronavirus outbreaks over the past several months.
The opinion is located here. As a Cliff’s Notes version, here are some snippets starting with the Per Curiam order of the Court (which was either written by Justice Thomas, Alito, or Barrett; my money is on Alito):
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. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches immediately affected by the Executive Order can seat at least 500 people, about 14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to 400. 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.
[. . .]
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. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.
Concurrence from Justice Gorsuch:
As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. 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.
Justice Kavanaugh, also concurring:
In light of the devastating pandemic, I do not doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake. To reiterate, New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, and much more severe than the restrictions that most other States are imposing on attendance at religious services. And New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.
Chief Justice Roberts, who joined the liberal bloc in voting against the injunction, attempted to strike a fine balance between the sides. While conceding that the governor’s orders “do seem unduly restrictive,” the Chief tried to punt the issue on the basis that New York had since moved the area affecting the plaintiffs into a less-restrictive zone:
It is not necessary, however, for us to rule on that serious and difficult question [of whether the restrictions run afoul of the Constitution] at this time. The Governor might reinstate the restrictions. But he also might not. And 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. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things now stand, however, the applicants have not demonstrated their entitlement to “the extraordinary remedy of injunction.”
The Court’s three remaining leftish bloc, Justices Breyer, Sotomayor, and Kagan, agreed with the Chief that there is no need to decide upon Constitutional issues unless the plaintiffs were once again placed into the most restrictive zones. They also don’t believe the Constitutional issue is a clear-cut as the majority or the Chief seems to believe, and ought to be determined first by the Court of Appeals before being taken up by the Court. In the dissent, Justice Breyer writes:
We have previously recognized that courts must grant elected officials “broad” discretion when they “undertake to act in areas fraught with medical and scientific uncertainties.” That is because the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.” The elected branches of state and national governments can marshal scientific expertise and craft specific policies in response to “changing facts on the ground.” And they can do so more quickly than can courts. That is particularly true of a court, such as this Court, which does not conduct evidentiary hearings. It is true even more so where, as here, the need for action is immediate, the information likely limited, the making of exceptions difficult, and the disease-related circumstances rapidly changing. [The quotes above are from the Court’s earlier decision South Bay United Pentacostal Church v. Newsom, and citations have been omitted.]
It’s notable that Justice Amy Coney Barrett likely provided the decisive vote for the majority, unless we choose to believe that Chief Justice Roberts would have suppressed his desire to defer the decision for another day had Justice Ruth Bader Ginsburg lived (and presumably voted with the left bloc). As we start to swing into Advent and Hanukkah, Christians and Jews not just in New York but nationwide can feel comfortable that the highest Court respects our First Amendment rights against arbitrary and capricious edicts from government.
Happy Thanksgiving to all the blog’s readers and commenters, especially those who suffer through my posts.