Even In A Pandemic, Constitution Cannot Be Put Away: US Supreme Court Restrains Enforcement Of Strict Restrictions On Religious Services

The Supreme Court of the United States of America has restrained the authorities from enforcing the severe restrictions imposed by the New York Governor on attendance at religious services in areas classified as "red" or "orange" zones.

The restrictions by effectively barring many from attending religious services, strike at the very heart of the First Amendment's guarantee of religious liberty, the majority (5:4) judges held.

The court said that the applicants have made a strong showing that the challenged restrictions violate "the minimum requirement of neutrality" to religion. The court said that the regulations cannot be viewed  as neutral because they single out houses of worship for especially harsh treatment. It said

"In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as "essential" may admit as many people as they wish. And the list of "essential" businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders,  The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit."

The court also noted that restrictions, if enforced, will cause irreparable harm. It said:

If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.

On the issue of 'public interest', the court said that the State has neither claimed that attendance at the applicants' services  has resulted in the spread of the disease nor shown that public health would be imperiled if less restrictive measures were imposed. It observed:

" But even in a pandemic, the Constitution cannot be put away and forgotten. 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. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure."

"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 Gorsuch observed in a concurring opinion. According to Justice Kavanaugh, New York's restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses. 

Chief Justice Roberts expressed his dissent and observed that the applicants have not demonstrated their entitlement to "the extraordinary remedy of injunction."  According to Justice Breyer, 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.

"Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution 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. Because New York's COVID– 19 restrictions do just that, I respectfully dissent.", Justice Sotomayor observed in her dissenting opinion.

CASE: ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO 

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