Why the striking down of Cuomo’s rules on synagogue services signals a new era on the Supreme Court
People walk past closed stores in the Borough Park section of Brooklyn, on October 9, 2020, the day state restrictions on “red zones” went into effect. Image by Getty
The Supreme Court blocked government restrictions on houses of worship imposed by New York Gov. Andrew Cuomo in a late night ruling Wednesday.
Deciding two cases at once — one brought by Agudath Israel, an umbrella organization representing and advocating for haredi Orthodox Jews, and one brought by the Roman Catholic Diocese of Brooklyn — the court ruled that restrictions placed on areas with high COVID-19 test positivity rates unfairly discriminated against houses of worship.
Both petitions were brought when parts of Brooklyn were made into “red zones” under a plan implemented last month. In red zones, houses of worship are only allowed to have up to 10 people attending services at once, regardless of the capacity of the space. In orange zones, where restrictions are slightly less strict than in red zones, services are capped at 25 attendees. While nonessential businesses were shuttered in red zones, those that were allowed to remain open were not subject to the same capacity limits as houses of worship.
The case asked for an emergency injunction — that the court block the implementation of the rules right away — and the injunction was granted.
Does this mean COVID-19 restrictions in other states might also get struck down by the Supreme Court?
This ruling only affects New York. But it gives lawyers across the country a clear sense of what the justices find persuasive. The New York case is just one of many COVID-19 cases in federal court alleging that COVID-19 measures in different states unconstitutionally target the exercise of religion — worship, say — as lesser than other activities, like shopping for non-essential items.
“Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class,” Justice Brett Kavanaugh wrote.
Similar cases are before the Court from both New Jersey and California, and both of those cases follow the same approach embraced by the majority here: Disparate treatment of religion won’t fly under the First Amendment.
The new standard established by Agudath Israel ruling means states need to come to court prepared to defend what makes one activity more or less “essential” than others — and to do it before at least five skeptical justices.
Chief Justice Roberts did side with the liberal justices, though. And the vote was close: 5-4. Does that mean next time in a similar case, the decision might go the other way?
Actually, Roberts’ writings should be a discouraging sign for the Cuomo administration.
He is clearly doubtful of the constitutionality of Cuomo’s rules — he just didn’t think the case in New York was a true emergency, because the state had lifted its red or orange zone designations.
Also, the chief justice has already explained in similar cases that he’s wary of intruding on state and local safety measures without a very strong reason.
“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” Roberts wrote. “And it may well be that such restrictions violate the Free Exercise Clause. It is not necessary, however, for us to rule on that serious and difficult question at this time. The Governor might reinstate the restrictions. But he also might not.”
That means that if this or a similar case ever makes it back to the high court for a final ruling on the legal merits, he might vote differently.
Also, times have changed. Roberts’ moderating influence may not be so significant anymore.
With staunchly conservative Justice Amy Coney Barrett replacing the staunchly liberal Justice Ruth Bader Ginsburg on the court since the justices last reviewed COVID-19 executive orders in the summer, this ruling confirms the high court’s anticipated rightward shift. In recent years, Roberts served as the swing vote in close cases, often making his rulings on narrow and specific procedural grounds — as he did here.
But with an additional conservative on the bench, Roberts’ defection from the conservative flank doesn’t jeopardize a majority. Wednesday’s ruling could serve as the first of many closely decided precedents that will tip the other way the next time the court hears a similar set of facts.
Two of the conservative justices explained their rationale that states must tread carefully around the right to worship in crafting COVID-19 measures.
Kavanaugh and Justice Neil Gorsuch indicated that they believe past decisions by the high court were too deferential to governors at the expense of religious liberty.
Gorsuch added that past deference to states won’t be the approach moving forward: “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
In a signal to lower courts, Gorsuch challenges judges to check their instincts to stay out of the way during times of crisis. “But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack,” he wrote. “Things never go well when we do.”
Cuomo’s televised comments didn’t really factor into the decision.
In its filings, Agudath Israel and the diocese dedicated pages to arguments that Cuomo’s own remarks indicated his intentions to target the Orthodox community, even if the order itself was written in a religiously neutral way. Cuomo’s remarks only got a glancing acknowledgement by the majority, because the majority didn’t think the underlying order was religiously neutral.
For good measure, Justice Sonia Sotomayor’s dissent did address that part of the case, writing that the governor’s comments shouldn’t affect how the court evaluates the underlying policy. She pointed to the high court’s decision from 2018, where the justices narrowly upheld President Trump’s travel ban targeted mainly at Muslim-majority countries.
“If the President’s statements did not show “that the challenged restrictions violate the ‘minimum requirement of neutrality’ to religion,” …it is hard to see how Governor Cuomo’s do,” she wrote.
JTA contributed reporting.
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