In a 5-4 vote, the U.S. Supreme Court granted injunctive relief to Catholic and Jewish houses of worship affected by an executive order issued by New York governor Andrew Cuomo to battle the spread of the COVID-19. The governor’s order imposed restrictions on attendance at religious services in areas classified as “red” or “orange” zones. A church or synagogue in the red zone may have no more than 10 persons attending a service; in an orange zone, the cap is 25 persons. It does not matter if the house of worship is a cavernous cathedral with a 500-person capacity or a hole-in-the-wall with no windows or ventilation.
The red and orange restrictions do not apply to businesses that the governor considers essential. Liquor stores, bike shops, and acupuncturists are among the businesses deemed essential.
When a challenged restriction is not generally applicable to all businesses, it must satisfy the “strict scrutiny” standard of review. This means that the restrictions must be narrowly tailored to serve a compelling government interest.
The majority opinion declared that “Stemming the spread of COVID-19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.” In discussing the narrowly tailored prong, the court noted:
- New York’s restrictions are far more severe than has been shown to be required to prevent the spread of the virus at religious services.
- The houses of worship in the orange and red zones had not been the source of a COVID outbreak.
- The houses of worship were constantly “ahead of the curve, enforcing stricter safety protocols than the State required.”
The court also noted that:
there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches immediately affected by the Executive Order can seat at least 500 people, about 14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to 400. 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.
The majority acknowledged that judges are not “public health experts” and thus courts should respect the judgments of those with special expertise. “But even in a pandemic,” the majority averred, “the Constitution cannot be put away and forgotten.” The restrictions examined, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Of interest, Chief Justice John Roberts, along with the court’s left wing, would not have granted an injunction. It seems that shortly before the Court’s decision, the houses of worship in question were removed from the red and orange zones. Roberts and the liberals argued that this rendered the case moot. They make a fair point.
However, Justice Neil Gorsuch in a concurring opinion observed that the plaintiffs had to wait many weeks to have their case heard by the High Court, during that time they were subject to unconstitutional restrictions, the governor could easily put them back in red or orange zones, and thus it would make little sense to have the plaintiffs file again start the slow march back to the Supreme Court.
Bottom line: This is a good decision for religious liberty. Unless a COVID-19 public health law is generally applicable to all businesses, it will face strict scrutiny and must be narrowly tailored. If the state is going to single out liquor stores and bike shops for special treatment, it must be ever so careful in how it restricts churches.
This article was published by The Beacon