In a departure from two earlier rulings, the Supreme Court last week granted requests by New York Catholic and Orthodox Jewish communities to halt enforcement of COVID-related restrictions on the number of people who may gather to worship.
By a vote of 5-4, the Court temporarily enjoined New York’s severe restrictions on religious services while the groups pursue their claims that the restrictions discriminate against them in violation of the First Amendment. Although the ruling is procedural and temporary, it is based on the Court’s determination that petitioners will likely prevail on the merits.
The First Amendment protects the free exercise of religion from government interference. The question, in cases such as this one, is whether particular pandemic-related restrictions treat houses of worship more strictly than other secular institutions.
The New York case, Roman Catholic Diocese of Brooklyn v. Cuomo, involves restrictions that prohibit more than 10 people from attending religious services in “red zones,” while allowing essential businesses, a category that somehow includes acupuncture facilities, hardware stores, liquor stores, and campgrounds (but not houses of worship), to admit unlimited numbers of people. New York caps attendance at religious services in “orange zones” at 25 people, but places no limit on the number of people that can enter even non-essential businesses.
Earlier this year, in South Bay United Pentecostal Church v. Newsom, a 5-4 majority of the Court, led by Chief Justice John Roberts, denied a request from a California church to enjoin enforcement of state restrictions on religious services. The same 5-4 majority also denied a request by a Nevada church in Calvary Chapel Dayton Valley v. Sisolak to block regulations which imposed greater restrictions on churches than casinos.
Why the shift? As Justice Neil Gorsuch notes in his strongly-worded concurrence in the New York case, the Court’s earlier willingness to defer to pandemic-related executive orders was “based on the newness of the emergency and how little was then known about the disease.” Now, eight months into the pandemic, Gorsuch says,
[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.
Perhaps. But some commentators see the about-face as a result of a simple personnel change. As Andrew McCarthy writes in the Hill,
it is impossible to ignore the reality that the court’s internal dynamic has changed. Since the June decision, the court’s progressive icon, Justice Ruth Bader Ginsburg, has passed away, and the highly-regarded conservative legal academic and jurist, Judge Amy Coney Barrett, has filled the vacancy.
Given this change, the ruling in the New York case should come as no surprise to Court watchers—particularly those who listened to Justice Samuel Alito’s November 12th speech to the Federalist Society in which he criticized the Court’s rulings in the California and Nevada cases. With respect to the Nevada case, Justice Alito quipped:
The state’s message is this: ‘Forget about worship and head for the slot machines, or maybe a Cirque du Soleil show.’
Thankfully, a new majority of the Court sees the absurdity of such a position. You can watch the entirety of Justice Alito’s speech HERE.