The Supreme Court ruled late on Thanksgiving eve that Democratic New York Governor Andrew Cuomo’s lockdown order is likely unconstitutional. The 5-4 ruling, issued just before midnight, held that Cuomo likely discriminated against religious worshippers, violating their First Amendment rights. The injunction prevents N.Y. from enforcing lockdown rules harsher on religious worship than “essential” activities like liquor store shopping or bicycle repair shops.
Justice Amy Coney Barrett joined what might become a conservative bloc on the Court, ruling with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh to stop Cuomo from discriminating against religious worshippers. The liberals on the Court – and the Chief Justice – would have turned down the request from the faithful because Governor Cuomo changed the regulations to keep them out of court.
Cuomo Brings Faiths Together
The Roman Catholic Diocese of Brooklyn and Jewish congregation Agudath Israel sued Cuomo in federal court to stop him from implementing capacity restrictions on religious services attendance. In areas designated “red” zones, attendance is limited to ten people. That’s people, not a percentage of pre-pandemic capacity. In the end, though, it wasn’t hastily instituted rules conceived without the benefit of science or even common sense that killed the lockdown order.
The majority of the court couldn’t see past the blatant and unconstitutional imposition on the free exercise of religion the order presented. In an unsigned opinion, the Court’s ruling said the plaintiffs “have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.” Justice Gorsuch wrote separately of a judicial impulse to stay out of the way during a crisis, saying that, “if that impulse may be understandable or even admirable in other concurring circumstances, we may not shelter in place when the Constitution is under attack.”
Justices Weigh in
Justice Kavanaugh wrote separately, focusing on how the court’s ruling was not a decision on the merits. The U.S. Supreme Court stopped enforcement of the governor’s order until the lower court issues its ruling after hearing the case.
Joined by Justices Sonia Sotomayor and Elana Kagan, Justice Stephen Breyer wrote:
“[T]here is no need now to issue any such injunction. Those parts of Brooklyn and Queens where the Diocese’s churches and the two applicant synagogues are located are no longer within red or orange zones.”
Breyer’s argument, which Chief Justice John Roberts mirrors in his opinion, is that there is no need to issue an injunction. They counter the majority with the fact that the colored zones have changed since the suit was filed, so the constitutional imposition is removed. That was not enough for the conservatives, who questioned how the threat was extinguished if Governor Cuomo may reinstitute it at any time – and has said he likely will. The dissenters found no significant burden to require the worshippers to refile the lawsuit when the restrictions come back.
A Considered Counterargument
Justice Sotomayor wrote separately, joined by Justice Kagan. Sotomayor disagreed that the restrictions were more burdensome on religious worship than other activities. She said that types of activities permitted or denied were sufficiently different that it was not likely a violation of First Amendment rights. “Unlike religious services … bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time,” she argued. “Justices of this Court play a deadly game in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
The high court’s injunction will remain in place until the case works its way back up to the Supreme Court, or a lower court ruling is issued and unchallenged.
Read more from Scott D. Cosenza.