On Wednesday night, the Supreme Court ruled that churches in New York City could not be given stricter lockdown measures than other businesses. Gov. Andrew Cuomo’s lockdown measures created designated “zones” with different tiers of restrictions based on the density of positive cases. In the yellow zones schools can be open, gatherings are capped at 25 people and churches can open at 50% capacity. In the orange zone, schools are closed, gatherings are limited to 10 people and churches are limited to 25. In the red zone, schools are closed, gatherings are prohibited, and churches are limited to 10 people. The catch is that “essential businesses” are open in every tier of the restrictions. That means Target can have hundreds of people shopping, but churches cannot have more than 10 people in a service.
The Catholic Diocese of Brooklyn and several Orthodox Jewish communities brought suits against Governor Andrew Cuomo. They cited two major concerns; first, they argued it is unconstitutional to label certain businesses “essential” and churches “nonessential.” Not only is this arbitrary and unfair, but it violates the clear protections listed in the first amendment. Second, the Jewish communities, specifically, argued, “the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included.” The court granted an injunction relief, ruling 5-4 that the governor cannot limit churches when they allow other businesses to be open.
This is a major change in the direction of the Supreme Court on religious liberty and the pandemic. Just months ago, the court refused to issue stays against restrictions in California and Nevada. As evidence of the split, the majority opinion was joined by separate concurring opinions from Justices Gorsuch and Kavanagh, and dissenting opinions from Chief Justice Roberts, Justice Breyer and Justice Sotomayor joined by Justice Kagan.
The Arguments
Justices Breyer, Kagan, and Sotomayor argued that the courts should not intervene in life-saving health regulations. The Chief Justice joined them saying, “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.” He argued that while the injunctions against religious groups “do seem unduly restrictive,” he does not believe that the court should rule at this time. Breyer, Sotomayor, and Kagan argued that since these specific organizations have recently moved out of the restricted tiers, the decisions of the lower courts should be respected and they should file again if they re-enter restricted zones. In another dissenting opinion, Justices Sotomayor and Kagan wrote, “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.”
In the majority opinion, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett argued that these restrictions are indeed arbitrarily assigned, lead to irreparable harm for religious entities involved, and do not serve the public interest. If the government wants to create a protected class of businesses, Justice Kavanaugh argued, they must have a constitutionally permissible reason to exclude churches and religious groups from this class. New York has not done that. They concluded noting that the court is not composed of health experts, but that the state failed to prove that public health could not be protected through different measures.
In his concurring opinion, Justice Gorsuch focused on the unconstitutionality of restricting churches while allowing other businesses to operate; “Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available.” In a biting remark on the hypocrisy of Gov. Cuomo’s designation, Gorsuch wrote, “So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”
Media outlets covered the story as a triumph of the Trump appointees, but there’s more to it than a liberal/conservative divide. What Gorsuch’s opinion makes clear is that this case is not as much about coronavirus restrictions as it is the freedom of religion in American life. Governor Cuomo’s disregard for religion is not and will not be the deciding factor in what churches can and cannot do in America. The issue here is not whether or not churches should close or limit their services. There are churches in New York City who might decide to follow these tiered guidelines. Many churches should love their neighbors by doing everything they can to stop the spread of the virus. The question is who gets to decide; the government or the church?
Gorsuch writes for every religious person in the country when he says, “Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
Is this just a measure for religious people? Absolutely not. This is a win for every person who would defend the Constitutional foundation of the nation. Tyler Cowen, an economist at George Mason, put this point well; “While I am not myself religious, I regard religious services as essential parts of our society and also in the longer run for our economy (birth rates, if nothing else). More generally, I am struck by how many intelligent people no longer seem to attach much weight to religious liberty, by no means starting with the various anti-Church moves during the Obama administration, but certainly emphasized there… So I am happy to see push back in the opposite direction, siding with the rights of religious institutions. On top of all other considerations, those institutions are also (usually) bastions of non-Woke sentiments, which makes protecting them all the more important.”
If there’s a takeaway line from these cases, this is it; the final lines from Justice Gorsuch; “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.” This is religious liberty in a sentence.
Cole Feix is the founder and president of So We Speak.
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