Roman Catholic Diocese of Brooklyn v. Cuomo, No 20A87; Agudath Israel of America, et al. v. Cuomo, No. 20A90, 592 U.S. _____. Injunctions pending appeal entered November 25, 2020.
The Supreme Court has enjoined the operation of New York’s executive orders limiting religious gatherings pending resolution of Free Exercise challenges in the Second Circuit or regulation of any petition for certiorari. The court’s ostensibly per curiam opinion is accompanied by two separate concurrences and three separate dissents.
Executive Orders concerning public health have been issued and been modified and remain in effect or subject to further modification since the inception of the COVID-19 pandemic. These emergency measures, in board brush, are an admixture of geographic zones of danger combined with purportedly correlative restraints on public gatherings for secular or religious purposes. The measures may be enhanced or relaxed as the perception of prevalence or risk changes.
Both Orthodox Jewish and Catholic organizations have challenged the imposition of restraints on attendance at religious services in New York during the Covid-19 pandemic as violative of the Free Exercise Clause of the First Amendment of the United States Constitution. The restrictions apply to the religious entities more harshly than the more liberal constraints on ‘essential’ or commercial entities, they have argued. The measures have no bearing on reality, the petitioners submit, as there is no reason for limiting the numbers of those who may attend services to an inordinately small number where in fact churches and synagogues have the capacity to accommodate hundreds.
There is no question of compliance and there have been no known incidents of illness relating to the operation of the synagogues and services.
Both petitioners were denied relief in the district and appellate courts. Decision on the merits in the Second Circuit awaits briefing and argument in December.
Immediately after petitions were filed in the United States Supreme Court, the Governor relaxed restraints that had applied.
The Governor has argued that the pandemic restrictions favor churches and that no relief is necessary as the measures complained of are no longer in effect.
The Supreme Court has disagreed.
The Supreme Court has concluded that strict scrutiny must be applied to the emergency measures, and that these measures cannot withstand this scrutiny, as there is no doubt of the impact on religion and no support for the capacity of the measures to serve the government’s ends. Because the measures recently relaxed may be just as suddenly enhanced, the threats to the religious groups remain real and palpable. As the groups have established a likelihood of success on the merits, and as the harm to first amendment interests is present and ongoing, relief pending review in the Second Circuit is appropriate.
The Court’s per curiam opinion makes plain that the latitude accorded the political branches to act to ensure public health during crises is not unlimited: “Even in a pandemic, the Constitution cannot be put away and forgotten,” particularly where the restrictions in question strike at core constitutional concerns. Slip Op. at pp. 5-6.
Justice Gorsuch wrote separately to stress the vitality of the Constitution during the pandemic, stressing that “Government is not free to disregard the First amendment in times of crisis.” Slip. Gorsuch dissent at 2. The particular orders in issue, subject by their nature to strict scrutiny analysis, merit the observation that public health has uncannily allied with secular convenience. If the Constitution has “taken a holiday” during the pandemic, this may not be permitted to become “a sabbatical.” Gorsuch dissent at 3.
Justice Gorsuch takes particular aim at the Supreme Court’s and the lower courts’ reliance on Jacobson v. Massachusetts, 197 U.S. 11 (1905 ) as support for plenary emergency powers during crises that must be accorded judicial deference. Jacobson involved different rights and offered the affected a range of options, which the restrictions upon churches do not. As the current restrictions involve core constitutional concerns, Jacobson does not control. Even if deference is due the political branches, all emergency measures must measure up to Constitutional commands.
Justice Kavanaugh wrote a separate concurrence, noting that New York’s restrictions are more stringent than those of other locations. Once discriminatory measures are imposed, it is not good enough to not that they apply to others, he observed. Once a favored class is created, the state must say why those who are less favored are excluded.
Justice Kavanaugh takes a programmatic view of the Court’s offer of relief. If the recently relaxed regulations are abandoned, the petitioners will be protected but if there is not change there is no impact. The petitioners will at least be permitted some clarity during the pending appellate process.
Chief Justice Roberts has dissented, opining that there is no injunctive relief required where the challenged measures are no longer in effect. If that were to change the petitioners could return to the court. An order instructing the governor not to do what is not being done cannot be said to meet the standards required for awarding injunctive relief.
Justice Breyer, with Justices Sotomayor and Kagan, have joined in dissent to emphasize that there is no present need for intervention and that if intervention was needed, the parties could return and the need for relief could be promptly assessed and addressed. The justices opine that it is not clear that the restrictions violate the Free Exercise clause and that the interests of public health and safety must be balanced against religion. The courts have and must continue to recognize that assessments and interventions affecting public health crises, with their concomitant likely needs for prompt action, are the province of the political branches.
Justice Sotomayor, with Justice Kagan, wrote a separate dissent, expressing fear that further suffering may follow from the Supreme Court’s order. The worry is that success of the stringent measures has rendered them inapplicable, yet because of the court’s intervention, the more stringent measures may not be revived if they are needed. In Justice Sotomayor’s view, New York’s actions fall comfortably within the confines of prior analyses that hold that a law is not necessarily constitutionally infirm if it impacts religion provided there is reasonable parity with secular restrictions.
Here, where it has been shown that New York has preferred religious gatherings over others, neither intervention nor heightened scrutiny appears apt, the justice offers.
Disregarding or second guessing the governor with respect to matters of public health is a “deadly game,” in this dissenting view. And the mere reference to religion within the measures will not suffice to make them discriminatory. Any statement by the governor mentioning a particular religion likewise cannot establish discrimination, where statements by the President about a religious or ethnic group were set aside by the Court in reviewing the neutrality of travel measures in their entirety.