Late in the evening of November 25, the United States Supreme Court granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York executive order restricting attendance at houses of worship, particularly as it pertained to a 10- and 25-person limit at worship services.
Governor Andrew Cuomo (D-NY) issued the controversial order in question, Executive Order No. 202.68, on October 6, 2020. That Order created a three-tiered Cluster Action Initiative featuring a color-coded system of restrictions. In red zones, houses of worship are placed under a capacity limit of 25% of occupancy or 10 individuals, whichever number is lower. In orange zones, houses of worship are placed under a capacity limit of 33% of occupancy or 25 people, whichever number is lower. Finally, in yellow zones, houses of worship are limited to 50% of maximum occupancy. Cluster zone locations can be identified on the state’s cluster zone website.
The plaintiff religious organizations claimed that the Governor’s order violated the right to the free exercise of religion guaranteed by the First Amendment, particularly when secular businesses in the area are allowed to remain open, often with no occupancy restrictions. The opinion noted that the houses of worship bringing the challenge have operated for months without a single outbreak and that they have complied with public health guidance.
In recent months, the High Court had turned down similar requests brought by churches in California and Nevada. This time was different, however. The vote swung after the seat formerly held by Justice Ruth Bader Ginsburg was filled by Justice Amy Coney Barrett.
The unsigned opinion states, “Even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issues here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The New York Daily News Editorial Board did not like the decision, but even it had to acknowledge, “New York is no longer allowed to count to 10 in synagogues and churches. Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, Samuel Alito and Clarence Thomas make five, and that’s enough. In these United States, there’s no higher authority on what is legal and constitutional.”
Chief Justice John Roberts dissented, along with Justices Kagan, Sotomayor and Breyer.
The temporary injunction applies while the broader lawsuit works its way through the appeals court, and, if necessary, can be brought back to the High Court.
At the behest of the Governor, New York State Solicitor General Barbara Underwood had sought to argue that the Supreme Court should not intervene, because the Brooklyn red zone where the case originated was no longer in effect. However, this argument was rejected by the Court. The opinion stated, “The Governor regularly changes the classification of particular areas without notice. If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained.”
In a concurring majority opinion, Justice Neil Gorsuch wrote, “Government is not free to disregard the First Amendment in times of crisis. …Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” The justice stood tall and declared, “We may not shelter in place when the Constitution is under attack. Things never go well when we do.”
Penning an additional concurring opinion, Justice Brett Kavanaugh wrote, “New York’s restriction on houses of worship not only are severe, but also are discriminatory.”
As reported in The Buffalo News, “In light of the court ruling, the Catholic Diocese of Buffalo said individual parish capacity will be determined by the size of worship space and social distancing requirements.” Multiple Evangelical churches have indicated that, after the Supreme Court’s action, they will follow suit as well.
Norman Siegel, a constitutional lawyer and former leader of the New York Civil Liberties Union, told the New York Times, “The decision is applicable to people in similar situations. It’s applicable to any synagogue, any church, to any mosque, to any religious setting.” New Yorkers for Constitutional Freedoms concurs and believes that if government officials seek to impose the 10- or 25-person limit in other cluster zones that the Court will be ready to step in on the side of the congregations.
Looking beyond this action, Jason McGuire, executive director of New Yorkers for Constitutional Freedoms, has been consistently reminding the Governor and his advisors that there is “an illogical inconsistency” between the capacity restrictions on religious organizations in cluster zones (currently at 50% capacity) and non-cluster zones (currently at 33% capacity). “If it is deemed safe for churches in yellow cluster zones to allow 50% of building occupancy, how can it be appropriate to place more intense restrictions on worshippers in zones with lower COVID-19 infection rates?” asks McGuire. He believes that this too is ripe for a court challenge.
On a Thanksgiving morning conference call, Beth Garvey, Special Counsel and Senior Advisor to Governor Cuomo, said, “As the Governor noted, this really was mooted as it relates to the Brooklyn zones. The 50% restriction is the 50% percent capacity restriction that has been in place for some time now for a religious institution.” New Yorkers for Constitutional Freedoms interprets this to mean that the Cuomo Administration has quietly acknowledged that churches in yellow cluster zones and non-cluster zones may operate at 50% of occupancy.
It should be noted that Cuomo Administration officials believe the state is still able to enforce mass-gathering rules that impose capacity limits at houses of worship in cluster zones (50% in yellow zones, 33% in orange zones and 25% in red zones). Nothing in the Supreme Court opinion would seem to indicate otherwise.
In the same conference call, Ms. Garvey indicated that there may be some changes coming with regard to capacity restrictions. “We will be looking around the state at the other zones. We will be looking at capacity restrictions that currently exist in the red zones,” said Garvey.
Still, McGuire was encouraged. He said, “New Yorkers have much to be thankful for this Thanksgiving, not the least of which is this renewed recognition of the right to the free exercise of religion.” He concluded, “Constitutional liberties have been restricted during the pandemic, but the restoration of liberty does not come easily. It must oftentimes be clawed back. Now, the Supreme Court has signaled that it will not stand idly by while religious freedom is unduly infringed.”