In a decision handed down late Thanksgiving Eve, a five-Justice majority of the Supreme Court struck down parts of New York’s recent pandemic-driven emergency orders. Noting that the Gov. Andrew Cuomo had specifically called out the Brooklyn-based hasidic community as a potential hotspot for the spread of COVID-19, and that the governor’s rules specifically targeted houses of worship, the Court ruled that the enforcement of such rules must be prohibited.
Agudath Israel of America, an Orthodox Jewish group, and the Roman Catholic Diocese of Brooklyn sued Cuomo for targeting religious groups more strictly than businesses such as bike shops and liquor stores in the same neighborhood. They argued that Cuomo’s order violated their First Amendment right to Free Exercise of religion because “the official who issued [the order] made clear through unambiguous statements that the order was targeted at a religious minority’s practices and traditions” or because the order, “on its face, disfavors worship.”
Plaintiffs targeted the capacity limits outlined in the state’s “red” and “orange” distinctions that no more than 10 or 25 congregants, respectively, could gather in any one house of worship.
New York had developed a red-orange-yellow system of concentric circles to determine “cluster zones” that had documented a certain rate of COVID-19 positive tests or daily cases per capita. New York first implemented this system in October, which provided differing rules specifically for houses of worship, in addition to mass gatherings, restaurants, and businesses within the color-coded zones.
As of this writing, the NY State website still lists the cluster-based restrictions that treat houses of worship differently. Even though the orange and red limits of the Brooklyn cluster zone in question had been rolled back prior to the ruling, the Court’s majority made it clear that future, targeted attempts to restrict Free Exercise, even during emergencies, would not be tolerated.
Justice Neil Gorsuch delivered a scathing opinion, both challenging the state’s arbitrary emergency rules and excoriating the lower courts and Chief Justice Roberts for their process-based arguments for ruling for the state. Gorsuch stated powerfully that “[i]t 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.” “That is exactly the kind of discrimination the First Amendment forbids,” he wrote.
Taking on the argument that the case is moot since Cuomo had rolled back the restrictions in question, Gorsuch argued that this makes the ruling even more prescient. “To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the ‘off’ switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty,” he decried. This ruling is likely to dissuade state governors, and Cuomo in particular, from reinstating discriminatory and arbitrary restrictions like this again.
Contrary to what some would suggest, this ruling does not necessarily show the court leaning more “conservative” after the addition of Amy Coney Barrett in late October. As author and constitutional scholar Cass Sunstein wrote in a recent syndicated op-ed, this case is far from groundbreaking. Sunstein notes, “In the majority’s unsigned opinion, the court did not say that these restrictions would be unacceptable if they had been imposed on all gathering places. It said that the problem was that they singled out houses of worship ‘for especially harsh treatment.’” Gorsuch’s opinion simply makes that clear as day.
Instead, this case reveals a more practical fault line upon which to judge the Court’s current composition: those Justices largely deferential to state power versus those who see the Constitution as the backstop for individual liberty. While Chief Justice Roberts is referred to as a “conservative” justice, he tends to defer to elected officials or regulatory bureaucrats when weighing the interests and methods of state action. Viewing the court through this lense, Justice Kavanaugh might be the Court’s swing vote.
The addition of Justice Barrett, while notable considering that she replaced the unabashedly expansive viewpoints of the late Justice Ruth Bader Ginsburg, simply means the Court is more firmly in the camp that is skeptical of broad state action. While inconvenient for Cuomo and his ilk, this ruling strengthens religious liberty, and that is something worth celebrating. .