“The Supreme Court late Wednesday night granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York executive order restricting attendance at houses of worship. Both the diocese and the synagogues claimed that the executive order violated the right to the free exercise of religion guaranteed by the First Amendment, particularly when secular businesses in the area are allowed to remain open.” SCOTUSblog
The right praises the decision.
“Under longstanding precedent, states typically may enact religiously neutral, generally applicable laws without running afoul of the First Amendment, even if those laws sometimes burden religious practices. But if a law that burdens religion is not generally applicable, it must satisfy ‘strict scrutiny’: It must be narrowly tailored to promote a compelling government interest using the least restrictive means available…
“[Governor] Cuomo’s restrictions in areas classified as ‘orange’ or ‘red’ (in terms of COVID-19 prevalence) are neither generally applicable nor narrowly tailored… To fix the problem, Cuomo would not need to exempt houses of worship from the law everyone else follows, but merely ensure that churches aren’t relegated to second-class status. One approach may be to classify churches as essential and to assign all essential activities a capacity limit that takes establishment size into account…
“As the Court noted, some churches in New York can seat more than 1,000 people… Americans have a right to worship as they see fit, and the government may encroach on that right only in limited circumstances, which don’t include targeting churches for unjustifiably poor treatment the way Cuomo’s rules do.”
The Editors, National Review
“When government actions proscribe or interfere with a constitutional right, especially an explicit right enumerated in the Constitution, it requires a strict-scrutiny review. That means New York has to identify a compelling state interest, for which public health and pandemic control certainly qualify, but also demonstrate that the intrusion is narrowly tailored and rationally based…
“The state has no evidence that worship services when following proper social-distancing protocols and disinfecting regimes present any more risk than the businesses that the state allows to operate with lesser or no restrictions. That means it’s plainly discriminatory and arbitrary as well as unconstitutional.”
Ed Morrissey, Hot Air
“Without the late justice Ruth Bader Ginsburg, there were only three liberals to join the chief justice in support of the governor’s order. [Justice] Barrett joined the four conservatives who had dissented in this summer’s cases to form the majority in this one. Liberals have often marveled at how religious conservatives could so fervently back a decidedly imperfect man in President Trump. This case, in which all three of Trump’s appointees formed the majority’s backbone, shows why they did…
“Liberals have often defended the court’s jurisprudence as a defense of minority rights against majority tyranny. Barrett’s confirmation shows there is now a court majority that recognizes religious rights are worthy of constitutional protection, too. That’s a development that will likely pay dividends for conservatives for years — and perhaps decades — to come.”
Henry Olsen, Washington Post
“The four dissenters, including Chief Justice John Roberts, argue that an injunction isn’t necessary because Mr. Cuomo has already rescinded his orders. But the majority explains that Mr. Cuomo could reinstate or change them at any time, as he often has, and the plaintiffs would suffer immediate injury as they wait for courts to grant relief… While the 5-4 order is welcome, it is disappointing that the ruling wasn’t 9-0.”
Editorial Board, Wall Street Journal
“While lockdowns may have made sense early during the pandemic when we knew little about COVID-19, shutdowns now are severely interfering with the First Amendment right of religious freedom and the economic liberty of business owners… Take the Los Angeles shutdown. According to a lawsuit filed by the California Restaurant Association, the lockdown will cost 700,000 people their jobs… [of whom] 75% earn less than $50,000 per year. And at least 60% of these workers are people of color…
“Los Angeles did not present any public, scientific justification for its sudden shutdown of restaurants. When we examine California’s own evidence, however, the government’s justifications disappear. The state’s own evidence shows that only 3.1 percent of new non-residential COVID-19 cases originate from restaurants — far below other sectors such as groceries, manufacturing and transportation…
“According to [a lawyer for the California Restaurant Association], government officials themselves ‘have identified more COVID-19 cases at a single Northrop Grumman facility in Palmdale [Calif.] than in the entire restaurant sector.’”
John Yoo, Fox News
The left criticizes the decision.
The left criticizes the decision.
“One needn’t discount people’s spiritual needs to recognize that liquor stores, bike shops, groceries and pet shops differ from churches, synagogues and mosques with respect to public health. The risk of coronaviral spread is not merely a function of the number of people at a venue; it increases dramatically as they linger in a stationary position, especially when they speak or sing…
“Though religious gatherings face greater restrictions than less risky activities like shopping, they are actually treated more favorably than comparably risky secular activities, such as public lectures, concerts and theatrical performances — as the trial judge in the Roman Catholic Diocese case observed. For the Supreme Court’s new and extremely conservative majority, it seems, failure to sufficiently discriminate in favor of religion counts as discrimination against religion.”
Laurence H. Tribe and Michael C. Dorf, USA Today
“New York actually cut churches a small break, allowing small numbers of people to be inside them, while completely closing down comparable venues, such as Madison Square Garden and Broadway theaters. The court’s ruling did not give the churches of New York equal rights. It gave them special rights. Something that conservatives used to be against.”
George Pyle, Salt Lake Tribune
In her dissent “[Justice] Sotomayor invoked the 2018 case in which the conservative majority -- over a dissent from Sotomayor and other liberals -- upheld the Trump travel ban that applied to several majority-Muslim countries… Sotomayor noted that the Roman Catholic Diocese had argued that certain statements made by Cuomo reinforced its arguments that he had impermissibly targeted religious activity. Cuomo had rejected that characterization, as did Sotomayor…
“‘Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a ‘Muslim Ban,’ originally conceived of as a ‘total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on… ‘If the President's statements did not show 'that the challenged restrictions violate the ‘minimum requirement of neutrality’ to religion, it is hard to see how Governor Cuomo's do.’”
Joan Biskupic, CNN
“This shift is bringing with it a notable testiness among the justices. In his concurring opinion in the New York case, Justice Neil M. Gorsuch took aim at Roberts and the liberal dissenters, accusing them of sending the Constitution on ‘a holiday during this pandemic.’ Roberts swatted back with his customary restraint: The dissenters, he wrote, ‘simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.’…
“This is not the first time we have seen tensions between Roberts, who strives to tamp down the court’s perceived politicization, and the justices to his right. But Gorsuch’s bombast — and the uncommonly partisan and recrimination-filled speech Justice Samuel A. Alito Jr. delivered to the Federalist Society this month — carries a disturbing air of triumphalism… Barrett is likely to ramp up the court’s support for people and organizations that demand carve-outs from rules that the rest of society must follow.”
Steven V. Mazie, Washington Post
“Astoundingly, neither the opinion for the court nor the concurring opinions of Gorsuch or [Justice] Kavanaugh mention the seriousness of the coronavirus pandemic. It is not until [Justice] Breyer’s dissent that it is mentioned that COVID–19 has infected more than 12 million Americans and caused more than 250,000 deaths nationwide…
“At least 26,000 of those deaths have occurred in the state of New York, with 16,000 in New York City. The conservative justices also failed to acknowledge that the pandemic is surging, not waning. In New York, the seven-day average of new confirmed cases per day has risen from around 700 at the end of the summer to more than 4,800 last week…
“On the same day as the court’s ruling, Trump encouraged Americans to ‘gather’ for Thanksgiving despite constant warnings to the contrary from public health experts. One would have hoped that the justices on the court would have looked to the medical evidence and at the very least followed recent precedents upholding restrictions on religious gatherings.”
Erwin Chemerinsky, Los Angeles Times
A libertarian's take
“It is undisputed that both the Brooklyn diocese and Agudath Israel, which sued Cuomo on behalf of the Orthodox synagogues it represents, were following strict COVID-19 safety protocols, including face masks and physical distancing. It is also undisputed that no disease clusters have been tied to their institutions since they reopened. The plaintiffs were not asking to carry on as if COVID-19 did not exist. They were instead arguing that Cuomo's policy singled out houses of worship for especially harsh treatment and was not ‘narrowly tailored’ to serve the ‘compelling state interest’ of curtailing the epidemic.”
Jacob Sullum, Reason