The Constitution Is Not Under Quarantine: U.S. Supreme Court Enjoins New York’s Pandemic Restrictions on Religious Gatherings



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argued that the pandemic restrictions favor churches and that no relief is necessary as the measures complained of are no longer in effect.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.  

Roman Catholic Diocese of Brooklyn v. Cuomo 20A87 Order November 25, 2020

Agudath Israel et al. v. Cuomo 20A90 Order November 25, 2020

Faith in the Not So Hot Zone: Second Circuit Denies Synagogues and Churches Relief from New York’s Pandemic Measures

Agudath Israel of America, et al. v. Cuomo, No. 20-3572; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3590 (2nd. Cir.)  Stay pending appeal denied on November 9, 2020.

New York has restricted gatherings by size according to perceived geographic intensity of COVID-19 infections.  Religious groups have appealed a federal district court’s denial of injunctive relief that would preclude enforcement of New York’s order.  

Noting first that the Jewish petitioners failed to request a stay pending appeal in the federal district court, the Second Circuit then denied relief from operation of the pandemic measures pending appeal to Jews and Catholics alike

The Second Circuit commenced by stating that strict scrutiny does not apply to neutral and generally applicable laws.  The religious groups have been unable to establish that the pandemic restrictions are not neutral.  The restrictions on gatherings affect religion and secular groups similarly, and are premised on the prevalence of infection.  

The Supreme Court recently denied similar relief, the Second Circuit judges found, and the dissent in the appeal in this case has not persuaded the deciding justices that the standard of “reasonableness” at the time of the issuance of the pandemic orders must be viewed in light of changed circumstances. 

Dissenting Judge Park offered that the deciding judges have ruled based on a skewed perception of the zones.  The zone restrictions are not neutral.  Within zones only religious institutions remain restricted while “essential” operations are not.  

The measures not only specifically single out religious entities for special treatment but they also impose burdens that are substantially heavier than those imposed on other entities, in violation of the Free Exercise Clause.

The overtly different treatment of religious groups with an unmistakably disparate impact on these groups cannot be other than intentional. This is supported by the governor’s threat to close Orthodox Jewish institutions should they refuse to comply.

The dissent rejected the Governor’s argument that only rational basis review is needed as in the Governor’s view religious groups are treated more rather than less favorably than others,

The Governor’s position concedes non-neutrality, the dissenting judge observed. 

In the dissent’s view, the characterization of businesses as ‘essential’ and religious entities as ‘inessential’ facially targets religion.  Strict scrutiny is required as more than incidental burdens are evident.

The recent Supreme Court summary decision concerning California’s pandemic measures is not precedent, the dissent stated, because such orders are precedentail only where decided issues are identical.  The standards for relief in the Second Circuit and the temporal considerations are significantly different. 

New York has maintained the same restrictions since the inception of the pandemic notwithstanding marked reduction of disease.  

Jacobson v. Massachusetts, 197 U.s. 11 (19050 lacks the significance the Governor wishes it had, as Jacodbson was decided before the First Amendment was incorporated against the states and did not concern free exercise.   

Just as Jacobson does not support deference to indefinite exercise of emergency powers, but rather demands consideration of constitutional constraints, the facts of this case show that the absolute limits imposed on religious gatherings are not narrowly tailored.

The zone restrictions are the same — ten persons — for churches that can hold one thousand persons and those that can hold forty persons and the additional identified risks of singing or chanting make assumptions about religious gatherings not applicable to others.

The court has issued its briefing schedule for the merits with hearing to be scheduled as early as December 14, 2020. 

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

Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries


Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  


The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)

Referrals to Potential Adversaries Not Required: U.S.D.C. in Massachusetts Strikes Down Landlord’s Compelled Speech, Opines that Injunctive Relief Will Be Denied, Declines to Opine Further, and Promises a Written Opinion

Baptiste et al. v. Commonwealth, No. 1:20-cv-11335 (D. Mass.). Hearing on September 10, 2020.

_________________________________________________

Today the court declined to deliver an opinion on injunctive relief and dismissal orally, offering that the issues were sufficiently complex that doing so would be ill-advised, and promising to deliver a written opinion, admittedly still in draft.

The court noted that it would deny injunctive relief except that it had found the Commonwealth’s requirement that any landlord notifying tenants of nonpayment must provide referrals to representation was unconstitutional compelled speech under National Institutes of Family and Life Advocates v. Becerra, 585 U.S. ____ (2018). Applying principles of severability, that determination would not extend to other portions of the regulations promulgated in connection with the eviction moratorium enacted in response to the COVID-19 pandemic.

The court noted that much of the law imposing the moratorium would not survive strict scrutiny analysis, but the court is inclined to the view that strict scrutiny analysis is not warranted.

The court indicated that counsel should discuss how they wished to proceed going forward, bearing in mind changed conditions since the beginning of the moratorium and impending state action concerning continuation or cessation of the moratorium on evictions in mid-October.

The court offered that it would deny injunctive relief and that its reasoning on injunctive relief and dismissal would be presented all in one decision. The admonition to counsel to consider the future is some indication that dismissal will not be granted.

The court appeared to be focused on precedent from Chief Justice Stone of the Supreme Court who relied on Justice Holmes for the principle that it is within a court’s purview to consider whether an exigency that prompted state action has ceased to exist. Notwithstanding that the court seemed inclined to the view that the exigencies apparent last spring may no longer be present, the court also indicated fear that any action might be perceived in hindsight as being of a caliber of the now discredited Korematsu v. United States, 323 U.S. 214 (1944).

Private Property, Public Problems: Landlords Challenge Massachusetts’ Eviction Moratorium in Federal and State Proceedings

Baptiste, et al. v. Secretary of Housing and Economic Development, et al., No. 1:20-cv-11335 (MLW) (D. Mass.).  Oral argument on motions for preliminary injunctive relief and for dismissal or stay held September 2 and 3. 

Matorin and Smith v. Executive Office of Housing and Development, No. 2084CV01134 (Sup. Ct.).  Memorandum and Order on Motion for Preliminary Injunction entered August 26, 2020.


Massachusetts’ Eviction Moratorium. In response to the health and economic crisis precipitated by the COVID-19 virus, last spring the Massachusetts legislature enacted a law suspending processes of eviction and foreclosure.  Regulations governing this moratorium forbade many communications between landlord and tenant except as dictated by the state, including advising tenants in obtaining financial and legal aid.  

Originally intended to expire in mid-August, the moratorium has been extended into mid-October.  It is not known whether or for how long the suspension will remain in effect, but it may, potentially, extend up to a year beyond the culmination of the COVID-19 crisis.

The Massachusetts act prohibits initiation of eviction proceedings as well as processes in aid of those proceedings occurring at or after the time the legislation and regulations became effective.  Although it is specifically stated that the moratorium does not relieve tenants of the obligation to pay rent, in practice the measures have been interpreted to permit exactly that.

Landlords Respond. Small landlords have launched state and federal challenges, asserting that the state law and regulations unconstitutionally inhibit property owners’ access to the courts, violate First Amendment rights both by proscribing and prescribing speech, constitute physical and/or regulatory takings, and violate the Contracts Clause.

No injunctive relief in state court, but ruling on motion for injunctive relief in federal court promised for September 9th. Having lost their motion to enjoin the act in state court, this week two days of argument were had in federal court, at the close of which the court invited commentary on issues arising during proceedings.  The federal court has scheduled a hearing on September 9th and has promised a ruling on injunctive relief at that time.  

Private enterprises, not public agencies. Plaintiffs assert that the state has demanded that landlords have been conscripted, without consent and without compensation, to act as state housing authorities by providing free lodging indefinitely to individuals who have no right to be on the landlords’ properties.  Plaintiffs further assert that the moratorium decimates leases and other contracts.  The Commonwealth denies that the landlords face the hardships they described as the state has enacted only temporary measures, the impact of which may be less than landlords perceive.  

Only temporary. The state has responded to plaintiffs’ claims by asserting  immunity and by arguing that the moratorium is a valid exercise of the state’s plenary emergency powers for the general welfare, and that no rights have been deprived or infringed by its temporary measures.  The Commonwealth has argued that no taking has occurred, that there is no right to injunctive relief in takings cases.  

No end in sight. Just as there is no certainty concerning the duration of the eviction moratorium, so too is there no certainty concerning resolution of this litigation, which has attracted the attention of advocacy groups seeking to serve as amici.  

Post argument submissions. Plaintiffs have submitted two post-argument memoranda of law, the first addressing the proper standard of review for deprivations of rights of petition, arguing that scholars perceive that some rights are so fundamental that only strict scrutiny will suffice. 

The Commonwealth’s response is that there can be no deprivation of rights of access to the courts where, in the Commonwealth’s view, there is no underlying case for adjudication.  A temporary interruption of enforcement mechanisms during an emergency works no harm where those remedies will become available when the emergency is over. 

Plaintiffs observe that the emergency is all but over and that the successful implementation of social distancing and other recommendations make the state’s draconian prohibitions unnecessary now if ever they were.  

Plaintiffs point to Massachusetts precedent finding significant deprivations of rights of access to the courts to have occurred over a period of weeks, and that the indefinite nature of the moratorium only enhances deprivations already suffered.  

The Commonwealth has commented on the state’s favorable view of statutory and regulatory severability which would permit the court to excise any portion of the moratorium provisions found to be unconstitutional while leaving the remainder intact.

The Center for Disease Control Weighs In. Plaintiffs point to a newly promulgated federal prohibition on evictions as proof that the state’s measures are needlessly harsh.  The federal measure permits evictions while permitting tenants to avoid eviction by submission of proof of financial difficulty and/or ability to obtain new housing, thus demonstrating that the state’s perceived link between access to the courts and public health is ill-founded.  

Ruling on Motion for a Preliminary Injunction in Superior Court 

2020 08 26 Matorin-v-Commonwealth-of-Massachusetts-Decision-on-Preliminary-Injunction

Memoranda of Law Submitted in Federal Court

2020 07 15 Memorandum of Law in Support of Preliminary Injunction

2020 07 24 Memorandum of Law in Support of Dismissal or Stay

2020 07 25 Opposition to Motion for Preliminary Injunction

2020 09 03 Supplemental Memorandum in Opposition to Preliminary Injunction

2020 09 03 Supplemental Memorandum Addressing Newly Raised Issues

2020 09 03 Supplemental Memorandum Addressing CDC Order

Centers for Disease Control Order

https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19

Federal District Court in New York Enjoins Pandemic Precautions Restraining Religious Gatherings

Soos, et al. v. Cuomo, et al., No. 1:20-cv-651 (N.D.N.Y.) (GLS/DJS).  (Order granting injunctive relief entered June 26, 2020).


Since the inception of public health concerns about potential harms should coronavirus (COVID-19) contamination be left unchecked, New York state and city officials have issued not less than seventeen orders dictating who may congregate where and for what purposes.  Religious services fell among the most rigidly curtailed events.

Notwithstanding harms predicted to ensue from close unprotected contact with others, in June mass protests erupted across the United States.

Thousands gathered in New York without official objection.  The governor counseled citizens to be “smart” by practicing social distancing.  It has been reported that, apparently without further elaboration, the Mayor of New York opined that protesting racism presented a “different  question” than did religious events, certain of which he had previously vociferously condemned.

On motion brought by religious leaders, the United States District Court for the Northern District of New York declined to find the public health orders to be “neutral laws of general applicability” presumed to be constitutionally sound even if such laws incidentally burden religion.

The state and local course of conduct created de facto exemptions specifically inhibiting the free exercise of religion, the court found.  The court could not identify a compelling interest which would justify any distinction that would permit public gatherings for some purposes but not for religious purposes. Where irreparable harm could be presumed to flow from the prevention of religious free exercise rights, the court enjoined enforcement of any indoor restrictions greater than those imposed on non-essential entities and any outdoor restrictions.  In both indoor and outdoor settings, social distancing precautions are to be employed.

Soos v. Cuomo No. 20-cv-00651 (N.D.N.Y.) Order June 26 2020

 

 

The Tale of the Tell All: Federal District Court Refuses to Enjoin Publication Said to Contain Sensitive National Security Information


United States v. John R. Bolton, No. 1:20-cv-01580-RCL Order denying temporary restraining order entered June 20, 2020.


Former National Security Advisor John R. Bolton complied with the pre-publication review process of his account of his days in the Trump administration up to the point when, following required agency review that had provided assurances that his manuscript was free of classified information, counsel for the White House and National Security Council advised that further review was ongoing.

Bolton’s publisher, Simon & Schuster, has printed and distributed Bolton’s book to re-sellers in anticipation of publication on June 23.  Excerpts are currently available online.

The government’s advanced prohibition of publication — “prior restraint” — is anathema to the First Amendment except in limited circumstances.  The publication of classified information harmful to national security interests is one such circumstance, requiring that those accessing such information agree not to disclose or publish such information absent review.

The United States has sought and has been denied an injunction which would temporarily restraining Bolton from full publication.

The United States District Court for the District of the District of Columbia determined that the law governing injunctions no longer permits flexibility or a “sliding scale” approach but demands that all four prongs of the requirements for injunctive relief must be met.  To obtain such relief, a party must demonstrate a substantial likelihood on the merits, that it will suffer irreparable harm if relief is not granted, that there will be no substantial harm to other parties if relief is granted, and that the extraordinary relief sought serves the public interest.

Following in camera review of the United States’ declarations and submissions supporting its position, the court did not look kindly on what it characterized as Bolton’s “gamble” with national security, surmising that Bolton had weighed the financial and publicity benefits of truncating the review process against the costs to the nation and to himself of the possible disclosure of classified information.

The court found the government’s insistence that irreparable harm would ensue if injunctive relief were denied fell short of the mark where the harm to be prevented has in essence already occurred.   Any further harm that the government fears cannot likely be overcome by a grant of a temporary restraining order where the internet would permit worldwide publication in an instant of materials already disclosed.

The court observed that a toothless injunction could hardly cause harm to others and that an award of such relief would only nominally serve the public interest.

While the court’s analysis and conclusions on the matter of injunctive relief disfavored the government, particularly as the court thought little of the request that the court order recall of materials already in the publisher’s and resellers’ possession, the court did not hesitate to proffer his prediction of the merits:  “[d]efendant Bolton likely jeopardized national security by disclosing classified information in violation of his national security obligations.”  (June 20th Order, Docket No. 27, at p. 6.)

The court recited potential costs if Bolton loses on the merits are not insignificant:  loss of profits, exposure to criminal liability, and harm to national security.

Justlawful observation:  A federal district court does not have time and may lack the inclination to explore institutional ramifications when ruling on a time-sensitive motion for a temporary restraining order.  Suffice it to say that it remains to be debated what ends, positive and negative, the classification of information serves, and what institutional erosion may occur where former officials determine of their own accord what processes will be respected, and what conditions will be abandoned, particularly in service of self interest.

This is not to say that the government wears a ten-gallon white hat in this case.  The government may not be on solid ground if it seeks to preclude embarrassment accompanying publication, and this is a widely held public perception of the government’s position.  Publication of embarrassing information may diminish the United States and its President in the eyes of the world, but without more this cannot be a true national security concern.  Moreover, the bureaucratic obstreperousness perceived in the imposition of additional hurdles to publication diminishes the justification for the extant exception to the constitutional prohibition of prior restraints.

Nonetheless, the court included in its considerations the reality that classification and security interests are not necessarily the subject of single source review, particularly where the author “was entrusted with countless national secrets and privy to countless sensitive dealings.”  (June 20th Order, Docket No. 27, at p. 6).  It is in this that the government’s extension of the review process may stand on firmer ground.

United States v. John R. Bolton No. 20-cv-01580-RCL Order June 20 2020