New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020