Gov. Andrew Cuomo’s recently-imposed cluster zone restrictions on houses of worship make it impossible for some churches within those zones to gather for worship. (Let’s face it: When the Governor limits churches in “red” zones to 10 congregants or fewer, he may as well be shutting them down completely.)
The Roman Catholic Diocese of Brooklyn is fighting back. After receiving an adverse decision from a federal judge and a split decision from an appellate court, the Diocese appealed to the Supreme Court of the United States. According to the Diocese, the Governor’s order “‘expressly singles out “houses of worship” by that name for adverse treatment relative to secular businesses, and does so in a way that is not narrowly tailored to any compelling government interest, in direct violation of the First Amendment’s Free Exercise Clause.’”
The Supreme Court ruled against churches in two similar cases earlier this year. In one such case, Chief Justice John Roberts wrote: “‘The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.”’” However, the Court issued both decisions prior to the death of Justice Ruth Bader Ginsburg and the confirmation of Justice Amy Coney Barrett.
At a recent meeting of the Federalist Society, Justice Samuel Alito spoke out forcefully in support of the First Amendment’s guarantees of religious liberty. Taking aim at a recent Supreme Court decision regarding Nevada COVID-19 regulations that limited churches to 50 attendees but allowed gambling casinos to open at 50% of building capacity, Justice Alito said, “‘Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment which protects religious liberty. You will not find a craps clause or a blackjack clause or a slot machine clause.’ Justice Alito added, “‘For many today, religious liberty is not a cherished freedom. It’s often [considered] just an excuse for bigotry [that] can’t be tolerated, even when there is no evidence that anybody has been harmed.’”
Justice Alito is right. While the latest wave of COVID-19 infections requires carefulness and caution, our state government is not at liberty to treat churches unfairly or to close them indefinitely. It is hoped that the Supreme Court will recognize this and rule accordingly.