In a victory for religious liberty, the United States Supreme Court granted an injunction last Wednesday, protecting two New York religious organizations from New York Governor Andrew Cuomo's executive order that imposed "very severe restrictions on attendance at religious services in areas classified as 'red' or 'orange' zones" pending a decision on the merits of the case by the Second Circuit.
The Court's unsigned per curiam opinion was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Both Justices Gorsuch and Kavanaugh wrote concurring opinions. Chief Justice John Roberts wrote a dissenting opinion. Justice Breyer also authored a dissenting opinion that Justices Sotomayor and Kagan joined. Justice Sotomayor wrote her own dissenting opinion joined by Justice Kagan.
Wow - finally some good news from the SCOTUS on overbroad COVID regulations! https://t.co/ev17oUj5y7
— Harmeet K. Dhillon (@pnjaban) November 26, 2020
Today I'm thankful for a Supreme Court majority devoted to protecting the religious freedom our forefathers came here for.
— Carrie Severino (@JCNSeverino) November 26, 2020
Two justices fighting the good fight for decades + three Trump appointees dedicated to defending our First Amendment = 🥳🎊🎉🎈🙌https://t.co/4iJ7HzuZix
The majority opined:
Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. 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 his concurrence, Justice Gorsuch wrote:
As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. 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.
In Justice Kavanaugh's concurrence, he wrote:
In light of the devastating pandemic, I do not doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake. To reiterate, New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, and much more severe than the restrictions that most other States are imposing on attendance at religious services. And New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.
The Court's decision in this case shows just how impactful Justice Barrett's confirmation to the Court has been:
[I]t 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. The trajectory is shifting away from deference to autocratic executive power and toward the Constitution’s protections of core liberties — the separation of powers and the Bill of Rights.
In Wednesday’s ruling, Roman Catholic Diocese of Brooklyn v. Cuomo, even Chief Justice John Roberts, who once again sided with the court’s liberal bloc (though this time, in dissent), conceded that Gov. Cuomo’s limitations on worship “do seem unduly restrictive.” Based on his assessments of the severity of COVID-19 outbreaks, Cuomo classifies various state areas as red, orange or yellow zones. In the red zones, of greatest outbreak concern, no more than 10 people can attend a religious service, even though some of the churches seat over 1,000, and all of them at least a few hundred. In orange zones, attendance is capped at 25.
On Friday at 2 p.m. ET, RNLA will be hosting a webinar about maintaining constitutional rights during the COVID-19 pandemic entitled "Have COVID-19 Restrictions Gone Too Far?" Be sure to RSVP by clicking here.