The Supreme Court late on Wednesday blocked the governor of New York from enforcing restrictions that sought to restrict attendance at religious services in areas of the state that officials say are witnessing clusters of COVID-19.
Five of the court’s conservative members granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block the attendance limits, which capped at 10 the number of people who could attend a service in an area classified as “red” and at 25 in zones the state designated as “orange.”
Both the diocese and the synagogues noted that the restrictions targeted religious services more harshly than they did businesses deemed by the state to be essential, all of which could operate without limits on the number of people who entered their premises.
As such, the regulations violated the Free Exercise Clause of the First Amendment, contended the religious groups, which asked the court to block their enforcement.
“The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty,” wrote the majority, which included recently confirmed Justice Amy Coney Barrett. “Even in a pandemic, the Constitution cannot be put away and forgotten.”
The majority noted that the churches and synagogues subject to the order had honored protocols recommended by the state (including wearing masks and forgoing singing), which the majority added could point to no instances in which the religious services risked the spread of COVID-19 more than a store in Brooklyn that might have hundreds of people shop there on a given day.
Justice Gorsuch concurred. Writing that squaring the governor’s orders with the First Amendment “is no easy task,” Gorsuch underscored what for him showed the extent to which the state’s order treated religious groups differently:
It turns out the businesses the governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pickup another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch wrote.
At issue in the appeal is the requirement of government neutrality toward religion. Rules issued by the government that treat religious groups differently must be narrowly tailored to serve a compelling state interest.
The majority acknowledged that the state has a compelling interest in stemming the spread of COVID-19 but that the restrictions in New York were far more restrictive than needed to prevent the spread of the coronavirus at religious services hosted by the groups that sought to block the governor’s order.
For their part, the court’s three liberal members noted in dissent that the governor’s order had changed since the appeal was filed; that the churches and synagogues are no longer within the red or orange zones — that the houses of worship are now in yellow zones, where they can hold religious services at up to 50% of capacity.
Though the state remained free to reimpose red or orange zones in areas where the churches and synagogues are located, the diocese and synagogues also remained free to refile their requests for court review, the dissenting justices noted.
“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the state has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges,” they said.