The Supreme Court’s conservative justices moved for the first time late Wednesday to block a governor’s COVID-19 restrictions, ruling that New York’s attempt to control rapidly spreading infections in churches and synagogues had violated constitutional religious freedoms.
Newly seated Justice Amy Coney Barrett cast a key vote in a pair of 5-4 orders handed down just before midnight.
Lawyers for the Roman Catholic Archdiocese in Brooklyn and several congregations of Orthodox Jews had sued the governor, contending that the restrictions violated the 1st Amendment’s protections of the free exercise of religion.
The rulings may not have much immediate impact because Democratic Gov. Andrew Cuomo had already lifted the 25-person limit in Brooklyn late last week.
Citing that change, Chief Justice John G. Roberts Jr. and the court’s three liberals said there was no longer a reason to grant the emergency appeals.
But the court’s five other conservatives issued an order that puts all states on notice that they must be careful that their efforts to control the pandemic do not impose limits on churches, synagogues and mosques deemed to be stricter than those on businesses or other places where large numbers of people might gather.
The court’s ruling could soon affect California. Lawyers for the Harvest Rock Churches, including several in the Los Angeles area, filed an appeal this week asking the court to lift Democratic Gov. Gavin Newsom’s restrictions on indoor church services. The justices asked the state’s lawyers to respond by Monday.
In the New York case, the majority said Cuomo’s orders were not neutral, but “single out houses of worship for especially harsh treatment.”
“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 1st Amendment’s guarantee of religious liberty,” the court said in an unsigned opinion in the Roman Catholic Archdiocese of Brooklyn vs. Cuomo.
“Government is not free to disregard the 1st Amendment in times of crisis,” wrote conservative Justice Neil M. Gorsuch in a separate opinion. “At a minimum, [the 1st Amendment] prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available.... Yet recently ... certain states seem to have ignored these long-settled principles.”
Gorsuch said Cuomo’s order deemed many retail businesses essential, including hardware stores, liquor stores and bike repair shops.
“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,” he wrote.
Until Wednesday, the high court had turned away appeals arising from the pandemic and said judges should be wary of second-guessing state and local officials who are trying to stop the spread of the virus.
Earlier this year, the court turned down a San Diego church’s challenge to the limits on indoor services set by Newsom, and a similar appeal from Nevada. Both decisions came in 5-4 votes, with Roberts and the late liberal Justice Ruth Bader Ginsburg in the majority and the four remaining conservatives in dissent.
But Ginsburg’s death in September and her replacement by Barrett shifted the majority.
At issue in Wednesday’s decision were restrictions Cuomo imposed in response to data showing clusters of COVID-19 spreading in parts of Brooklyn and a few other New York neighborhoods.
In the most severe “red zone” areas, churches and synagogues were limited to 10 people at a time. Congregations in less severe “orange” zones could have up to 25 people, and in “yellow” areas, they could have 50.
The red-zone limits were removed after a few weeks, and Cuomo said the restrictions would be steadily reevaluated based on data showing how the virus was spreading or receding in the neighborhoods.
While the appeal was pending at the Supreme Court, Cuomo lifted restrictions in Brooklyn’s orange areas.
Justice Brett M. Kavanaugh, a conservative, said in a separate opinion that Wednesday’s order was limited to unusually strict restrictions on houses of worship.
“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 1st Amendment interests at stake,” Kavanaugh wrote.
“New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue [in earlier decisions] and much more severe than the restrictions that most other states are imposing.”
Roberts said in dissent that the court should not have granted relief “under the present circumstances.”
“There is simply no need to do so. ... None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions,” he wrote, adding that “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.”
Liberal Justices Stephen G. Breyer and Sonia Sotomayor wrote dissents arguing that New York’s restrictions were reasonable because they put stricter limits on indoor gatherings where people would be together for an hour, unlike in a retail store. Justice Elena Kagan, a fellow liberal, joined both dissents.
“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,” Sotomayor wrote.
Religious rights advocates praised the court for intervening.
“Treating synagogues and churches worse than the pet stores, liquor stores, and department stores didn’t make any sense, particularly when Agudath synagogues and Brooklyn parishes have carefully and responsibly followed the rules,” said Eric Rassbach, a lawyer for the Becket Fund for Religious Liberty who had filed one of the appeals. “The Supreme Court was right to step in and allow Jews and Catholics to worship as they have for centuries.”
Advocates of church-state separation said they were shocked and surprised by the rulings.
“The Constitution promises that religious freedom is a shield to protect us — not a sword that licenses harm to our communities. It’s shocking that the Supreme Court would ignore this fundamental principle, especially in the midst of a worsening pandemic,” said Rachel Laser, president of Americans United for Separation of Church and State.
Last month, lawyers for the Roman Catholic Archdiocese filed suit in federal court in Brooklyn contending that the red and orange limits were unconstitutional because they prohibited most people from going to Mass. They argued that Cuomo’s order “singles out houses of worship” for discriminatory treatment while allowing banks and retail businesses to remain open. The limits included rules requiring masks and social distancing.
Several Orthodox Jewish congregations filed a similar suit and alleged that the governor had admitted he “targeted” Orthodox Jews with his order and threatened to shut down their synagogues entirely.
Lawyers for the state disputed these claims and said the governor’s order treated worship services “more favorably” than similar nonreligious gatherings. They noted that movie theaters, plays, lectures, concerts and gyms were shut down entirely. They argued that visits to a grocery store are different because people come for a short time and go, rather than sit together in the same room for an hour.
A federal judge refused to lift the restrictions, and the U.S. 2nd Circuit Court of Appeals affirmed that decision by a 2-1 vote. The majority cited the brief opinion by Roberts in California’s case in May in which he said judges should not put themselves in the place of the elected officials who are trying to manage the response to a fast-changing emergency.
Appeals court Judge Michael H. Park, nominated by President Trump, dissented, saying the restrictions discriminated against churches and synagogues.
The appeals to the Supreme Court followed on Nov. 10.
Two days later, conservative Justice Samuel A. Alito Jr., speaking at the Federalist Society convention, endorsed the Brooklyn archdiocese’s legal claims, sharply criticizing the court’s earlier refusal to lift restrictions on indoor services in California and Nevada.
He said the pandemic had led to “previously unimagined restrictions on individual liberty,” adding: “Religious liberty is fast becoming a disfavored right.”
This story originally appeared in Los Angeles Times.