The U.S. Supreme Court late Wednesday blocked New York Gov. Andrew M. Cuomo’s COVID-19 rules limiting attendance at religious services, in a 5-4 decision that reveals a fault line that may prevail when the high court confronts pandemic restrictions on religious education.
On the same day the court ruled in the New York case, an emergency application arrived from from two religious leaders in New Jersey who argue that state capacity restrictions and mask mandate are harming religious education.
In the New York decision, issued just before midnight on Nov. 25, the court acted on an emergency application filed by the Roman Catholic Archdiocese of Brooklyn, as well as a separate application by Aguduth Israel of America, a national grassroots group representing Orthodox Jews, two New York City synagogues, and two individuals. They argue that an executive order by Cuomo that establishes “red” and “orange” zones limiting attendance at religious services to 10 and 25 people, respectively, violate the First Amendment’s guarantee of free exercise of religion.
In an unsigned opinion in Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo (No. 20A87), the Supreme Court majority blocked the governor from enforcing the limits pending further developments on the case on the merits.
“The applicants have made a strong showing that the challenged restrictions violate the minimum requirement of neutrality to religion,” the court said, adding that the governor’s regulations “cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.”
The red and orange zone classifications, part of the Democratic New York governor’s October “cluster initiative” targeting a resurgence of COVID-19 in some neighborhoods, allow “essential” and even some nonessential establishments to have unlimited capacity.
“The governor has stated that factories and schools have contributed to the spread of COVID-19, but they are treated less harshly than the diocese’s churches and Agudath Israel’s synagogues, which have admirable safety records,” the court said.
Under Cuomo’s order, public and private schools are required to be closed in red and orange zones, but may open at full capacity in yellow zones, while houses of worship are limited to 50 percent of their capacity.
The unsigned opinion was backed by a majority made up of Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett.
Barrett’s confirmation to the court in late October to replace the late Justice Ruth Bader Ginsburg was significant on this pandemic issue. Ginsburg had been part of a five-justice majority in the spring and summer that denied emergency relief to California and Nevada churches challenging COVID-19 capacity limits.
In the New York case, Gorsuch wrote a concurrence that said government was not free to disregard the First Amendment, even in a time of crisis.
“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 wrote.
Kavanaugh wrote a concurrence saying that New York’s limits on houses of worship are more severe than the restrictions imposed by California and Nevada.
“To be clear, the COVID-19 pandemic remains extraordinarily serious and deadly,” Kavanaugh said. “But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”
Alito did not write separately, but he has been outspoken with his views that executive officials do not have unlimited powers to restrict religious freedom during a public health emergency.
“Whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes,” Alito said in a recent speech to the Federalist Society.
The dissenters were Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.
Roberts last spring had written a concurrence in the California church case, South Bay United Pentecostal Church v. Newsom, explaining his view that courts should defer to executive officials on pandemic restrictions. In the new case, he wrote a dissent only for himself that said no intervention was needed at this point because Cuomo had changed the relevant alert zones from red or orange to yellow, allowing the challengers to hold services at 50 percent capacity.
Roberts also traded barbs with Gorsuch, whose concurrence criticized the chief justice’s concurrence in the California case.
Breyer, in a dissent joined by Sotomayor and Kagan, stressed the extent of the COVID-19 crisis and the dangers of people congregating in close proximity.
“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the state has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges,” Breyer said.
Sotomayor, in a dissent also joined by Kagan, said the court’s grant of relief to houses of worship as in this case “will only exacerbate the nation’s suffering” from the pandemic.
“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 said.
New Jersey Requirements
Hours before the dramatic late-night ruling in the New York case, another emergency application arrived at the high court, from a Catholic priest and Jewish rabbi who are challenging New Jersey Gov. Philip D. Murphy’s capacity limits on houses of worship and mask mandate as it applies to religious services and schools.
Under Murphy’s orders, houses of worship are limited to 25 percent of capacity or 150 people, whichever is lower. And masks are required in public places, indoors or out, with various exceptions.
Those orders were challenged by the Rev. Kevin Robinson, the pastor of a Catholic parish in North Caldwell, N.J., and Rabbi Yisrael A. Knopfler, who presides over a synagogue in Lakewood, N.J.
In their filing in Robinson v. Murphy (No. 20A95), the New Jersey religious leaders argue that houses of worship are discriminated against compared with other institutions, such as schools and retail outlets, which have no capacity limits. And Rabbi Knopfler argues that the worship limits affect the religious education of his 10 children, who may attend religious school but with their classmates are prevented from gathering in synagogue for prayers during the school day.
The rabbi contends that the state’s mask mandate interferes with religious education as well.
“The rabbi’s countenance must be visible during worship and instruction, as the Talmud requires that students ‘see your teacher’s mouth,’ as when Moses removed the veil when he spoke to the people of Israel,” the religious leaders’ application says.
The New Jersey application, backed by the Thomas More Society, was filed after a federal district court denied relief. The application was filed with Alito, who is the circuit justice for the U.S. Court of Appeals for the 3rd Circuit, which covers New Jersey. Alito will likely seek a response from the state before acting on the application himself or referring it to the full court.
A version of this news article first appeared in The School Law Blog.