In a flurry of six separate opinions released close to midnight on Thanksgiving eve, the Supreme Court, by a vote of 5-4, enjoined one of New York’s public health measures aimed at containing the spread of covid-19. Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, Governor of New York.
Although the name of the newest Justice did not appear in any of the opinions, the vote of Amy Coney Barrett enabled the Court’s sudden shift in direction at a time when the impact of the coronavirus has reached new highs.
In two cases earlier this year, the Court, also by narrow 5-4 votes, was willing to defer to the efforts of governors to deal with an acute illness with no known cure, no effective treatment, and no vaccine that has killed thousands of people. South Bay United Pentecostal Church v. Gavin Newsom, Governor of California; Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada. The governors of California and Nevada had sought to limit attendance at religious services as one of a number of restrictions designed to lower the risk of covid-19 spread. In California, attendance at religious services was restricted to 25 percent of the building capacity or a maximum of 100 attendees — whichever was lower. In Nevada, the governor restricted services to a maximum of 50 people.
Challenged by different religious groups as violations of the free exercise of religion guaranteed by the First Amendment, the Chief Justice, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, voted against giving those groups the injunctive relief they sought. The Chief Justice characterized decisions as to how best to deal with the pandemic as necessarily “dynamic and fact-intensive,” believing that those decisions should be left to politically accountable state officials. He concluded as well that similar restrictions had been imposed on comparable secular gatherings such as concerts, lectures and movie showings “where large groups of people gather in close proximity for extended periods of time.”
Justices Thomas, Alito, Gorsuch, and Kavanaugh all dissented, asserting that even a public health emergency “does not absolve us from our duty to defend the Constitution.” In their opinion, each of the governors’ orders treated houses of worship less fairly than they treated comparable secular gatherings and no “compelling justification” had been demonstrated for this difference in treatment. In the words of Justice Alito writing the principal dissent: “a public health emergency does not give governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.”
The current New York coronavirus regulations at stake in the new case differ from those enacted earlier by the governors of California and Nevada. They permit the New York governor to identify hot spots where covid-19 infection rates have spiked and to designate those hot spots as red zones, the immediately surrounding areas as orange zones, and the outlying areas as yellow zones, with the strictest restrictions in the red zones. Among other things, houses of worship in the red zones are limited to a gathering at any one time to the lesser of 10 people or 25 percent of capacity, with less strict limits in the other two zones. In October, the governor designated red, orange, and yellow zones in parts of Brooklyn and Queens.
Two different religious organizations filed suit in federal district court claiming that these local fixed-capacity restrictions violated their First Amendment rights. After receiving evidence and hearing witnesses, the district court concluded that the regulations were “crafted on science and for epidemiological purposes” and had, in fact, treated “religious gatherings … more favorably than similar gatherings.” As a result, the court declined to enter an injunction against the implementation of the state’s regulations. On appeal the Second Circuit also declined to prevent the operation of the state’s regulations pending the outcome of the litigation but placed the case on an expedited briefing and argument schedule.
The religious organizations then petitioned the Supreme Court to intervene and, by another 5-4 vote, the Court this time determined to issue an injunction prohibiting New York from enforcing its fixed-capacity zone restrictions while awaiting the Second Circuit’s decision, saying that “even in a pandemic, the Constitution cannot be put away and forgotten.” These restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty” while at the same time allowing people to go to places such as liquor stores and bicycle shops. In addition to the votes of Justices Thomas, Alito, Gorsuch, and Kavanaugh, the necessary fifth vote for this departure from the result reached in the two earlier cases was provided by the Court’s newest justice.
The four dissenting justices offered three different dissenting opinions. As seen by Justice Breyer, whether these restrictions violate the Constitution’s free exercise clause is “far from clear” and contrary to the lower court’s determination. “The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together” must be balanced against the First Amendment issues. For Justice Sotomayor, the majority ignores the conditions medical experts have found to facilitate the spread of covid-19, noting as well that the New York regulations were designed to apply only in specially designated areas experiencing a surge in covid-19 cases. In her opinion, the result reached by the majority plays “a deadly game in second guessing the expert judgment of health officials.” And the Chief Justice defended his other dissenting colleagues as not having “cut the Constitution loose during a pandemic” but rather as viewing “the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
The Court’s new majority eagerly champions the right to attend religious services as if the Constitution allows no other choice. It gives no deference to decision-making by public officials while at the same time making their own judgments about whether other, secular activities treated differently by covid-19 related restrictions presented health risks greater or lesser than religious services. In doing so, the decision flies in the face of conclusions made by the medical community about the relative risks of spread in different settings and does so at a time when state officials continue to scramble to cope with a new surge brought upon by a rising number of infections and overloaded hospitals.
John Christie
was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.