The U.S. Supreme Court issued an injunction overturning New York State’s strictest restrictions on houses of worship as an infringement on religious liberties, in a ruling handed down minutes before midnight on Thanksgiving Eve.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” read the unsigned 5-4 ruling. “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.”
“This is an historic victory,” said Avi Schick, attorney for Agudath Israel and the shuls that had challenged New York’s restrictions. “This landmark decision will ensure that religious practices and religious institutions will be protected from government edicts that do not treat religion with the respect demanded by the Constitution.”
Early last month, in response to rising COVID-19 infection rates, Gov. Andrew Cuomo instituted a “Cluster Action Initiative,” categorizing parts of the state into various colored “zones,” based on COVID-test-positivity rates. In the most-restrictive “red” zone, guidelines include limiting services at houses of worship to 10 people or 25 percent of maximum occupancy, whichever is fewer. In the intermediate “orange” zone, maximum attendance at houses of worship is limited to the lesser of 25 people or 33% of occupancy. In the least-restrictive yellow zones, houses of worship are limited to 50% of occupancy.
While houses of worship were subject to these limitations, “essential businesses” were allowed to remain open without occupancy restriction in red zones; in orange zones, all businesses were allowed open except specific high-risk ones like barber shops and salons. Religious groups argued that this disparity was an unconstitutional infringement on freedom of religion.
Multiple Orthodox Jewish and Catholic groups and individuals filed suit against various aspects of the Cluster Action Initiative.
Agudath Israel of America and two of its shuls – Agudath Israel of Kew Gardens Hills in Queens and Agudath Israel of Madison in Brooklyn – and the Brooklyn Catholic Diocese, comprised of 186 parishes and 210 total churches in Brooklyn and Queens, filed separate lawsuits challenging these restrictions, in federal court in the Eastern District of New York. (Several other plaintiffs filed suit in other federal districts of New York.) Following a string of denials of injunction requests in the District Court and the Second Circuit Court of Appeals, Agudah and the Diocese applied for injunctions earlier this month to the U.S. Supreme Court. (The cases have been considered together by the Second Circuit and the Supreme Court).
Neither Agudah nor the Diocese took issue with the 50%-of-occupancy restriction in yellow zones; the Diocese said it had voluntarily limited its church services to 25% of occupancy. What the plaintiffs primarily objected to was that the attendee limits applied regardless of the size of a particular house of worship; shuls or churches that ordinary house hundreds of people are still limited to the 10- or 25-person maximum.
Late Wednesday night, minutes before Thanksgiving, the Court granted the injunction, in an unsigned opinion joined by Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and new appointee Amy Coney Barett, stating that the plaintiffs had made a “strong showing that the challenged restrictions violate” religious liberties, that plaintiffs are likely to win the case on the merits, and that they stand to suffer irreparable harm if the injunction were not granted.
The injunction overturns the 10- and 25-person limit in red and orange zones, respectively, but apparently keeps in place the 25%- and 33%-of-occupancy rules in those zones, respectively.
The majority noted that various businesses were allowed to remain open without restriction even in red and orange zones, and that large “essential” stores have hundreds of shoppers on a given day, and that “the Governor has stated that factories and schools have contributed to the spread of COVID … but they are treated less harshly than the Diocese’s churches and Agudath Israel’s synagogues, which have admirable safety records.”
Moreover, in enacting the restrictions, largely in Orthodox Jewish areas which were experiencing a COVID uptick, Cuomo had on a number of occasions specifically mentioned the Orthodox Jewish community and said that restrictions were particularly focused on religious services.
As religious activity is a target, the majority ruled, the limitations are only constitutional if they are “narrowly tailored.”
“It is hard to see how the challenged regulations can be regarded as narowly tailored. They are far more restrictive than any COVID–related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services,” the Court wrote. “It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other activities that the State allows.”
Previously during the pandemic, the Supreme Court had declined to overturn restrictions on houses of worship in California and Nevada, in 5-4 votes. The difference in this case: Justice Barrett, who replaced the recently deceased Justice Ruth Bader Ginsburg on the Court late last month.
Chief Justice John Roberts, and Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor opposed granting of the injunction in Wednesday’s case, for different reasons provided in three separate dissents. The four justices had joined Ginsburg in the majority in the previous Supreme Court COVID cases.
Since the enactment of the Cluster Action Initiative and the filing of the lawsuits, COVID positivity rates have improved enough that orange and red zones have been removed from Brooklyn and Queens; plaintiffs’ houses of worship are currently in yellow zones or non-colored zones.
In his own dissent, Roberts said that the house-of-worship restrictions “do seem unduly restrictive,” and “it may well be that such restrictions violate the Free Exercise Clause,” but that the Court should not rule on the matter at this time, because the red and orange zones have been lifted, rendering the injunction request moot.
“The Governor might reinstate the restrictions,” Roberts wrote. “But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things now stand, however, the applicants have not demonstrated their entitlement to the extraordinary remedy of injunction.”
Breyer, Sotomayor and Kagan agreed with Roberts that the injunction request should be denied because the issue was currently moot, but in a separate dissent written by Breyer argued that the injunction should not have been granted anyway.
“Members of the scientific and medical communities tell us that the virus is transmitted from person to person through respiratory droplets produced when a person or group of people talk, sing, cough, or breathe near each other,” Breyer wrote. “Thus, according to experts, the risk of transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces. 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,” rendering an injunction inappropriate.
In a separate dissent, Sotomayor, joined by Kagan, wrote that the state was actually giving preferential treatment to religion, by allowing houses of worship to remain open (albeit at reduced capacity) even while shuttering theaters, concert halls, and sporting arenas. Sotomayor argued that these venues – rather than “essential businesses” such as liquor stores and bike-repair shops – are the more appropriate comparison to houses of worship, as these are all places where large groups of people gather and chant for extended period of time.
“The Constitution,” Stomayor wrote, “does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives.”
But the majority argued that the injunction was appropriate, and the issue is not moot, noting that the plaintiffs “remain under a constant threat that the area in question will be reclassified as red or orange.”
“The Governor regularly changes the classification of particular areas without prior notice. If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained,” the majority wrote. “Moreover, if reclassification occurs late in a week, as has happened in the past, there may not be time for applicants to seek and obtain relief from this Court before another Sabbath passes … The applicants have made the showing needed to obtain relief, and there is no reason why they should bear the risk of suffering further irreparable harm in the event of another reclassification.”
In his own concurring opinion, Gorsuch gave a strongly worded defense of religious liberties, and criticism of the Court’s rulings in the prior COVID cases – particularly a ruling by Chief Justice Roberts, who has disappointed conservatives by casting the decisive vote in these cases.
“Government is not free to disregard the First Amendment in times of crisis,” Gorsuch began, concluding six pages later with, “It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
The Supreme Court injunction applies while the case is heard on the merits in the Second Circuit Court of Appeals – arguments are scheduled for mid-December – and, even if the plaintiffs then lost in the Second Circuit, the injunction would apply pending an appeal to the Supreme Court.
With Barrett joining the other four conservatives, Wednesday’s ruling underscored the conservative majority expected to take hold on the Court with her replacing Ginsburg – even as Roberts, once considered a reliably conservative vote, is seen as one who perhaps is moving more toward the center.
“On Thanksgiving 2020, the new Roberts Court arrived,” Josh Blackman, a constitutional law professor and one of the attorneys in another suit against Cuomo’s restrictions, told Hamodia shortly after the ruling was announced. “Justice Barrett’s key vote allowed the Court to rule in favor of Agudath Israel. Now, the Governor will have to treat houses of worship like other ‘essential’ businesses.”
In a statement Thursday, Shlomo Werdiger, chairman of Agudath Israel’s Board of Trustees, noted the difficulties in bringing a lawsuit against the same government that Agudah has to lobby for the needs of its constituents.
“It was not an easy decision for Agudath Israel to go to court over this matter,” Werdiger said. “That is not our preferred means of advocacy. However, the principle at stake was of such monumental importance that we felt impelled to fight to uphold our religious freedom.
“The Agudah has prioritized health since the onset of this pandemic, and we continue to encourage sound health practices. With the legal parameters clarified, we look forward to continuing to work hand in hand with our elected officials to ensure the well-being of our community with a single standard of safety for religious and secular activities.”
In a conference call with reporters Thursday, Cuomo dismissed the ruling as “irrelevant from a practical impact,” as the plaintiffs’ houses of worship are no longer in red or orange zones.
“I think this was really just an opportunity for the Court to express its philosophy and politics,” said Cuomo. “I fully respect religion and if there’s a time in life when we need it, the time is now, but we want to make sure we keep people safe at the same time. That’s the balance we’re trying to hit.”
Religious organizations hailed the ruling Thursday.
“The right of all Americans to enjoy freedom of religion is a sacrosanct privilege afforded to us by the United States Constitution that cannot be trampled upon by anyone, including government officials,” the National Council of Young Israel said in a statement. “Houses of worship cannot be singled out in a punitive fashion while it is business as usual at other facilities, and we are grateful that the court ruled that this type of double standard will not be tolerated.”
“With its most welcome midnight ruling,” said Orthodox Union President Mark (Moishe) Bane said, “the Supreme Court upheld an essential American principle – that the government may not impose rules represented as being ’neutral’ but that are actually unfair in their treatment of religious exercise.”
The full Supreme Court ruling is available here.
Updated Friday, November 27, 2020 at 12:31 am .