“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes in a 5-4 decision that stopped New York from enforcing public health rules due to COVID-19 with respect to churches and other religious institutions in New York City, effectively exempting these institutions from such health restrictions at least until a decision on the merits of an appeal is reached. The Court acted even though the restrictions had been lifted by the state due to improving health risks. The Thanksgiving Eve 2020 decision is in Roman Catholic Diocese of Brooklyn v. Cuomo.
As part of its response to the rapidly worsening COVID-19 pandemic as the weather grows colder in the US, New York state adopted rules authorizing the Governor to designate specific areas where the infection rates have spiked as red, orange, and yellow zones, in each of which there are increased temporary restrictions on activities where groups of people gather and risk further infection. For example, in red zones, movie theaters, sporting arenas, and schools are closed entirely; dining at restaurants and “nonessential gatherings” are prohibited; activities at houses of worship are limited to ten people (25 in orange zones) ; and businesses that can remain open must enforce mask-wearing and social distancing mandates. Churches and synagogues in red and orange zones, represented by the Roman Catholic Diocese and Agudath Israel, filed suit to challenge the restrictions on them and asked for a preliminary injunction as the case went forward.
A district court conducted extensive hearings and denied the request for a preliminary injunction, noting that religious institutions were actually treated “more favorably” by the rules than secular gatherings with comparable risks, like “concerts or theatrical performances.” The plaintiffs appealed and asked for emergency relief pending their appeal. The Second Circuit denied that request (with a dissent from Trump judge Michael Park) but scheduled an expedited hearing on December 18. The plaintiffs then asked the Supreme Court to forbid the state from applying the restrictions to them pending a final decision on the appeal. While the case was being considered by the Supreme Court, due to slight improvements in health conditions, the areas that the churches and synagogues were in were redesignated as yellow zones, which meant that they could operate at up to 50% of capacity, which was more than the relief they had asked for.
In an unsigned 5-4 ruling in which Trump justices Gorsuch, Kavanagh and Barrett were part of the majority, the Supreme Court nevertheless granted the request and enjoined the Governor from applying red and orange zone restrictions on the religious institutions at least until a final decision on the case is reached. The majority maintained that the rules “single out houses of worship for especially harsh treatment,” in comparison with businesses like stores and garages that do not have such strict capacity limits. The majority further claimed that the rules are “far more restrictive” than pandemic-related regulations that the Court approved when Justice Ginsburg was on the Court, and that they would cause “irreparable harm” to the houses of worship and people who want to attend services there.
Trump justices Gorsuch and Kavanaugh filed additional concurring opinions. Justice Gorsuch was extremely critical of past Court decisions that upheld pandemic-related regulations as applied to religious institutions, calling Chief Justice Roberts’ opinion in one case “mistaken from the start.” Gorsuch maintained that the Governor only loosened the New York restrictions “just as this Court was preparing to act,” and that an injunction should be issued to “prevent the Governor from reinstating the challenged restrictions tomorrow.” He concluded by proclaiming that the Court was now making clear that it would not permit “color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.” While acknowledging that the pandemic situation may well “get worse” in many areas, Justice Kavanaugh similarly claimed that houses of worship “face an imminent injury” and are being treated worse than a “grocery store” or a “pet store.”
The court’s three remaining moderate justices, along with Chief Justice Roberts, dissented. Roberts acknowledged that the strict numerical limits could be found to violate the First Amendment, but insisted that it is not “necessary” to rule on that “serious and difficult question at this time,” since those limits were not in effect and the Governor “might’ or “might not” reimpose them, depending on conditions.
The remaining dissenters were more critical. Justice Stephen Breyer pointedly noted that there was “no legal or practical need” for the injunction at present, and that the courts should grant “broad” discretion to elected officials when they act “in areas fraught with medical and scientific uncertainties” and risks like the current situation. Justices Sonia Sotomayor and Elena Kagan explained the significant differences in health risk proven in the court below between relatively brief interactions with masks and social distancing in commercial establishments and people “gathering, speaking and singing in close proximity for extended periods of time” in religious institutions. Unlike religious services, they pointedly commented, “bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time,” and the New York rules treat religious institutions “more favorably than comparable secular institutions” like theaters and sports arenas. The Court majority was playing a “deadly game,” they continued, in “second guessing the expert judgment of health officials” about how best to deal with “a contagious virus, now infecting a million Americans each week.”
Unfortunately, the Court’s decision was well forecast by the recent troubling Federalist Society speech by Justice Alito, and is not likely to be the last Court ruling that threatens Americans’ health and safety during the pandemic. Governor Cuomo has noted that the ruling will not have any “practical effect” because of the recent changes in zone classifications, but suggested it was a “statement “ reflecting the “ideology” of the current Court majority. As one commentator has put it, with Justice Barrett’s replacement of the late Justice Ginsburg, “[i]t’s now open season on COVID restrictions at the Supreme Court.”