The Supreme Court sided with a coalition of Orthodox Jewish groups and the Catholic Diocese of Brooklyn Thursday in an emergency appeal that alleged New York Gov. Andrew Cuomo's (D.) COVID-related worship restrictions discriminate against Jews and violate the First Amendment.
The vote in the early Thanksgiving morning ruling was five to four, with Chief Justice John Roberts and the liberal trio in dissent. "Statements made in connection with the challenged rules can be viewed as targeting the ‘ultra-Orthodox Jewish' community. But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment," the majority wrote in an unsigned opinion.
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Cuomo's contested regulations establish three kinds of hotspot zones with corresponding restrictions. In red zones, where transmission is highest, church attendance is capped at 10. In less severe orange zones, that number is 25, while houses of worship in yellow zones may open at 50 percent attendance. A portion of Brooklyn and about half of Queens are currently in yellow zones.
"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," Justice Neil Gorsuch wrote in defense of the ruling.
The Thursday morning decision marks a potential turning point in a long-running legal battle over limits on worship during the pandemic. The justices turned away challenges to church attendance caps from California, Illinois, and Nevada over the summer. Those turned on whether judges should referee state and local leaders grappling with COVID. Justice Amy Coney Barrett has since replaced the late Justice Ruth Bader Ginsburg, and on Thursday she played a pivotal role, giving a fifth vote for closer scrutiny of frontline response.
Emergency appeals touching religious liberty and the pandemic have divided the justices. Chief Justice John Roberts has joined with the liberal bloc to leave house of worship regulations in place. In a brief May opinion he wrote that elected leaders, and not judges, ought to calibrate public health rules. That decision, and others which followed, drew multiple dissents from the Court's conservatives. Justice Samuel Alito broached those controversies in a pointed speech to the Federalist Society on Nov. 12, faulting the Court for leaving Nevada's strict limits on church attendance in place, even as its casinos are operating at 50 percent capacity.
Roberts in dissent noted the houses of worship in Thursday's cases are now in yellow zones, even if they were once in red or orange zones. He said the Court should have stayed its hand now that the plaintiffs can open their facilities at half occupancy. He added that the plaintiffs could return to the Court if Cuomo reinstates the numerical restrictions.
"None of us are rabbis wondering whether future services will be disrupted as the High Holy Days were, or priests preparing for Christmas," Gorsuch countered in a separate opinion.
Agudath Israel of America, an umbrella group of Orthodox Jews, led Thursday's challenge joined by two synagogues in Brooklyn and Queens. In recent weeks, many Orthodox synagogues, yeshivas, and businesses were subject to red zone regulations. The plaintiffs say Cuomo's office rigged red zone lines to encircle separate Orthodox communities into a single red zone.
When Cuomo first issued the new restrictions, he did not include any criteria for triggering inclusion in a hotspot zone, the plaintiffs claim. That's more evidence that the state is targeting Jewish communities, they argue. They also highlighted statements from the governor at press conferences as evidence of discrimination. Cuomo characterized a recent COVID outbreak as an "ultra-Orthodox cluster" and blamed increased transmission on Jewish religious practices.
"The governor’s repeated statements singling out the Orthodox Jewish community — matched by his clear gerrymandering to encircle primarily Orthodox communities and synagogues — are sufficient to render this order unconstitutional," lawyers for the plaintiffs wrote in court filings.
Lawyers for the state said that gets things exactly backwards. In legal papers, they said Cuomo's order actually treats houses of worship more favorably than comparable secular businesses. Venues that draw large numbers of people into a closed space, like movie theaters or concert halls, are closed outright under the restrictions. But churches and synagogues can remain open, subject to certain limitations.
"Religious gatherings are treated more favorably," New York solicitor general Barbara Underwood wrote. "They are allowed in red and orange zones, subject to size limits, even though they commonly present an outsized risk of transmitting the virus, whereas the secular activities that present similar transmission risks are banned entirely."
The Roman Catholic diocese of Brooklyn filed a separate appeal challenging Cuomo's restrictions for reasons other than discrimination.
The cases are No. 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo and No. 20A90 Agudath Israel of America v. Cuomo.