Cuomo, COVID, and the Notorious ACB

This past Wednesday (25 November 2020), the Supreme Court (“SCOTUS”) barred restrictions on religious services in New York that Gov. Cuomo had imposed to combat COVID-19. The vote was 5-4. If the late Justice Ginsburg were on the bench instead of Amy Barrett, it would have gone the other way.

This is not a permanent decision. Justice Kavanaugh explains:

Importantly, the Court’s orders today are not final decisions on the merits. Instead, the Court simply grants temporary injunctive relief until the Court of Appeals in December, and then this Court as appropriate, can more fully consider the merits.

Kavanaugh concurring opinion, p. 1.

The Roman Catholic Diocese of Brooklyn, along with some Orthodox Jewish synagogues, asked for injunctive relief from Gov. Cuomo’s order that “imposes severe restrictions on attendance at religious services in areas classified as ‘red’ or ‘orange; zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25,” (Decision, p. 1).

It has always been tricky to weigh religious freedom and the State’s legitimate authority to protect public health. In a recent article, I explained my own thoughts on this matter (for now, anyway) in my own context in WA State. This SCOTUS decision is very helpful because it crystallizes much of what I’ve been thinking for some time.

Strict neutrality. If you don’t treat religious institutions with strict neutrality, then a State will likely have a problem. You can’t single churches out for harsher treatment than other organizations:

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

Decision, p. 3.

What is the rhyme and reason for these determinations of “essential” vs. “non-essential?” I’m sure there is an alleged reason, and I’m also certain a binder exists even now in the State’s emergency management office that explains everything. I also know Gov. Cuomo made a moral distinction, a value judgement, when he drew those lines. A garage is more important to society than a church. This is not neutrality.

Irreparable harm. The decision notes:

There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. ‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion).

Decision, p. 5.

This is a point many Governors don’t understand and many Americans don’t understand. Religion is quaint, cute, mysterious and ultimately annoying to so many people today. They don’t understand it, so they don’t value it, and thus marijuana dispensaries are “essential” and houses of worship are not.

Public interest. Here, we have an especially compelling point.

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.

Decision, pp. 5-6

Justice Gorsuch issued a concurring opinion in which his tone was sharp and he appeared more than a bit … miffed. He proclaims:

At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pickup 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?

Gorsuch concurring opinion, p. 2.

A liquor store and a wine shop are not analogous to a worship service, but I take his point. It’s a shame Gorsuch wasn’t similarly outraged in Bostock v. Clayton County. He continues:

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. 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.

Ibid. Emphasis added.

Seemingly on a roll, Gorsuch now scales the heights of righteous indignation and observes:

In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. In far too many places, for far too long, our first freedom has fallen on deaf ears.

Ibid, pp. 2-3.

We cannot defer to Governor’s executive orders indefinitely, Gorsuch argues.

Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical

Ibid, p. 3.

Justice Kavanaugh echoes his colleague:

In red and orange zones, houses of worship must adhere to numerical caps of 10 and 25 people, respectively, but those caps do not apply to some secular buildings in the same neighborhoods.In a red zone, for example, a church or synagogue must ad-here to a 10-person attendance cap, while a grocery store, pet store, or big-box store down the street does not face the same restriction. In an orange zone, the discrimination against religion is even starker: Essential businesses and many non-essential businesses are subject to no attendance caps at all.

Kavanaugh concurring opinion, p. 2.

However, Kavanaugh goes further and insists States must explain why houses of worship are “excluded from that favored class” of businesses which can operate with fewer restrictions:

The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions.

Ibid.

To my knowledge, this point has not yet come up in a meaningful way in a COVID-19 context. This flips the entire script from “may I please stay open?” to “prove to me why I can’t stay open!” as follows:

• Wrong: You can’t just say, “gyms are closed completely, while churches can stay open subject to restrictions, so there is no discrimination.” This isn’t good enough.
• Right: Instead, you must say, “I know Walmart is open and the parking lot is always packed to the gills, but churches can’t do that because … (insert reasoning here).”

Thus, Kavanaugh tightens the screws:

Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses

Ibid, p. 3.

COVID is certainly dangerous, Kavanaugh admits. But the great danger, he warns, is if the judiciary continues to defer to the State. This cannot be:

But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised. In light of the devastating pandemic, I do not doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake.

Ibid, p. 3.

There is an ideological divide, here. No person is morally neutral, and so no judge can consistently act in a morally neutral way. Sometimes you must make a decision. You can try to be objective, and that’s surely praiseworthy, but sometimes you have to make a value judgement. That judgment is predicated on values, on ethics, on a moral absolute. Governor Cuomo made such a value judgment. Now, a majority of the Supreme Court has done likewise.

Tomorrow, we’ll conclude with some excerpts from the dissent and some brief analysis from legal experts on this injunction’s impact on similar religious liberty cases going into 2021.