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Who Knew Public Health Was So Perfectly Aligned with Secular Convenience?

Updated: Dec 10, 2020

Who Knew Public Health Was So Perfectly Aligned With Secular Convenience?

Supreme Court Rules on COVID-19 Restrictions for Churches

Written by Richard C. Baker, Esq.

On the eve of Thanksgiving, traditionally a day set aside for the nation to give thanks to God, the U.S. Supreme Court reversed its course dramatically with regard to restrictions placed on houses of worship during the COVID-19 pandemic. The case, The Roman Catholic Diocese of Brooklyn, New York v Cuomo challenged the Governor’s executive order essentially shutting down houses of worship in certain zones of the city. The reversal was not that houses of worship should no longer observe health guidelines to insure the safety of those gathering within their walls to worship God. Rather, as is clear from the Majority’s opinion, the Court recognized that more than lip service should be given to insuring that the fundamental or “essential” right of worship must be protected even in times of a pandemic. In the words of Justice Gorsuch: “In far too many places, for far too long, our first freedom has fallen on deaf ears.” Many believe that this ruling signals a new respect for the free exercise of religion in the Supreme Court.

By way of background, ever since the outbreak of the pandemic, the Supreme Court has sided with the governmental restrictions on religious assembly. In two cases to come before it this year, one out of California and one out of Nevada, the Court let stand restrictions which dealt more harshly with churches than on other indoor gatherings. The Nevada case, in particular, was egregious. There the state regulations allowed large crowds to meet indoors at tourist attracting institutions (casinos, amusement parks, etc.), while houses of worship were severely restricted. As one commentator put it, “their ruling effectively said that the state can allow residents to worship Mammon while restricting the worship of God.” In a third case from Chicago, where several churches challenged the restrictions, the Supreme Court averted making a decision by declaring the case moot. This came after Governor Pritzker reversed himself on the eve before the hearing and announced that the previously “mandatory” Illinois COVID restrictions affecting churches were in actuality, only “guidelines.” This was enough for the Court to moot the case. But the issue just won’t go away.

In The Roman Catholic Diocese of Brooklyn New York v. Cuomo, the Diocese and two Jewish synagogues in New York City challenged Governor Cuomo’s executive order imposing “very severe restrictions” on attendance at their religious services since they were located in areas classified as red or orange zones. To be specific, the Governor ordered that no more than 10 persons could attend a religious service in red zones, and in orange zones attendance would be limited to no more than 25. These fixed capacity restrictions were irrespective of any other factors. In response, these Catholic and Jewish houses of worship filed suit complaining that Governor Cuomo’s restrictions violated their free exercise right under the First Amendment. That right of free exercise, as the Court stated: “requires a State to treat religious exercises at least as well as comparable secular activities unless it can meet the demands of strict scrutiny—showing it has employed the most narrowly tailored means available to satisfy a compelling state interest.”

In summarizing the complaint the Court Majority noted that the houses of worship:

"both...maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all the public health threat guidance, have implemented additional precautionary measures, and have operated at 25 or 33% of capacity for months without a single outbreak.”

The Majority further observed of the Governor’s color coded COVID zones:

"…in a red zone, whereas a synagogue or a church may not admit more than 10 persons, businesses categorized as “essential“ may admit as many people as they wish. And the list of “essential“ businesses includes things such as acupuncture facilities, campgrounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities."
"The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit."

In granting the temporary injunction, the Majority found that there was no evidence that the houses of worship had contributed to the spread of COVID- 19 and that there are many other less restrictive regulations that could minimize the risk to those attending religious services. Rather than simply picking a ‘one size fits all’ arbitrary number as Governor Cuomo had done, the Court observed that since the Diocesan churches and the synagogues ranged in size from 400 to 1,000 people, maximum attendance at a religious service could be tied to far less restrictive measure such as the size of the church or the synagogue. In a jab at the Dissent the Majority stated: “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.”

Next, addressing the question of irreparable harm necessary for an injunction, the Court recognized the irreparable harm caused by barring people from attending a service. The Majority understood that even though some may be able to watch services on screens in remote viewing that is not the same as personal attendance. “Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.”

The Majority concluded that: “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.” In so finding, the Majority reinvigorated this country’s long and deep understanding as to the “essential” function of religion in the life and wellbeing of its citizens.

Justice Gorsuch picked up this theme again in his concurring opinion. He observed that with regard to the protection of religious liberty “… recently, during the COVID pandemic, certain states seem to ignore these long settled principles.” In comparing the restrictions on houses of worship with other “essential“ businesses, Justice Gorsuch again took aim at Governor Cuomo’s executive order stating:

"…it turns out that the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores, bicycle repair shops, in certain signage companies, accountants and lawyers and insurance agents are all essential to. So at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike or spend the afternoon exploring your distal points and meridians. Who knew public health was so perfectly aligned with secular convenience?”

Justice Gorsuch’s reflections were not limited to Governor Cuomo’s executive order. “In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. “

Thus, he concluded:

"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."

So what is the take away of this case which may dramatically affect struggling religious assemblies all over the country? Yes, jubilation is in order for this tangible shift in the Supreme Court’s attitude toward the importance and protection of religious exercise. The Court has made clear that there isn’t one health standard for religious assemblies and another for the government’s preferred assemblies and businesses. However, it should be noted that the Court in this case has only issued a preliminary injunction limited to temporarily prohibiting the State of New York from enforcing its fixed capacity restrictions on houses of worship in red and orange zones while the parties await the decision of the Second Circuit on the merits of their case. In short, the battle isn’t over.

Even so, I believe that there are at least two takeaways from this decision. First, the newest justice, Amy Coney Barrett cast the tie-breaking vote, not Chief Justice Roberts who has continued to come down on the side of government restrictions. So, this appears to signal a shift in the balance of power on the Court. Secondly, with regard to that shift, a new majority is forming with Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett who all appear to have a far greater respect for the fundamental or “essential” nature of our First Amendment right of free exercise of religion. This respect is exemplified by this decision’s clear message, as Justice Gorsuch summed up: “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 re-open liquor stores and bike shops but shutter churches synagogues and mosques.”


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