In Roman Catholic Diocese of New York v. Cuomo, published November 25, 2020, a split Supreme Court granted an application for injunctive relief enjoining the Governor of New York State from enforcing executive orders imposing restrictions on places of worship of from 25 people to 10 people, depending on whether the areas have been classified as "orange" or "red" zones. The plaintiff religious organizations presented evidence that they have complied with all public health guidance, and have operated at 25% to 33% capacity for months without any COVID-19 outbreaks. They contended that the restrictions treat houses of worship much more harshly than secular businesses. The Orthodox Jewish organization plaintiff cited comments the governor had made to argue that the governor had deliberately targeted the Orthodox Jewish community.
The majority opinion, per curiam, granted the injunction. On the prong of likelihood of success on the merits, the applicants had made a strong showing that the restrictions violate the minimum requirement of neutrality to religion. Apart from the governor's comments, they single out houses of worship for especially harsh treatment that does not apply to secular businesses deemed essential, which have no limits on the number of people that may be served. Because the restrictions are not neutral, they must satisfy strict scrutiny, and be narrowly tailors to serve a compelling state interest. Stemming the spread of COVID-19 is a compelling state interest. But the restrictions are not narrowly tailored. They are more restrictive than the other COVID-19 restrictions that have come before the Supreme Court, are more restrictive than those adopted by other jurisdictions, and more restrictive than necessary. There was no evidence that the applicants had contributed to the spread of the disease. There are less restrictive rules that could be adopted, such as tying the cap on attendance to the size of the church or synagogue. The harm of the restrictions would be irreparable: the loss of First Amendment freedoms, even for a limited time, is irreparable injury. Since it has not been shown that attendance at the services will spread the disease, the injunction will not harm the public. The majority rejected the dissent's opinion that the request was moot because the governor reclassified the areas affected to yellow, allowing 25% capacity at services. Because of the time another application could take, and the possibility the governor will reclassify the areas again, the majority saw no reason to withhold relief. "Members of this Court are not public health experts," the majority wrote, "and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic,
the Constitution cannot be put away and forgotten."
Justices Gorsuch and Kavanaugh wrote concurring opinions. Justice Roberts dissented on the ground that he opined the restrictions were moot. Justice Breyer (with Justices Sotomayor and Kagan joining) opined that there was no need for an injunction; that the requirements for an injunction were not met; and that in light of the health emergency officials should be free to act to impose restrictions. Justice Sotomayor (joined by Justice Kagan) dissented that under the orders dealing with previous applications for injunctions against COVID-19 restrictions brought by houses of worship, the restriction passed muster as no more restrictive than rules governing concerts, live performances, etc.
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