The Supreme Court decision invalidating portions of an Executive Order by New York Governor Andrew Cuomo earlier this week was a triumph for religious liberty. It is also a good example of why we should not fear that pandemic restrictions will lead to broader tyranny.
The ruling in the case of Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo came the day before Thanksgiving and was a response to two requests for relief by the Roman Catholic Diocese and Agudath Israel of America. At issue was Gov. Cuomo’s Executive Order that established “red” and “orange” zones where attendance at religious services was limited to no more than 10 and 25 people respectively.
One problem with Cuomo’s Order was that businesses deemed “essential” had no limit on crowd sizes. Additionally, the definition of “essential” included “acupuncture facilities, campgrounds, 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.”
Further, both religious groups had complied with public health guidelines as well as implementing additional preventive measures. Both groups noted that they had conducted services at 25 to 33 percent capacity for months and had no outbreaks.
In a 5-4 decision, the majority concurred with the unsigned order that ruled in favor of the religious groups. Justices Neal Gorsuch, Brett Kavanaugh, and Chief Justice John Roberts wrote separate concurring opinions while Justices Breyer, Sotomayor, and Kagan joined in a dissent.
The opinion is brief and strikes a balanced tone, first establishing the rules on which the relief was ordered. The ruling states that ” because the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they must satisfy ‘strict scrutiny,’ and this means that they must be ‘narrowly tailored’ to serve a ‘compelling’ state interest.”
The Court agreed that “stemming the spread of COVID–19 is unquestionably a compelling interest,” but noted that the Executive Order was “far more restrictive than any COVID–related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.”
The Court further noted that New York admitted that department stores, which were not subject to the crowd-size restrictions could “literally have hundreds of people shopping there on any given day” and that “the Governor has stated that factories and schools have contributed to the spread of COVID–19 but they are treated less harshly” than religious organizations.
Unlike many churches around the country, the Court found that the Diocese and Agudath Israel had taken more stringent safety measures than were required by the state. These precautions gave both groups an admirable safety record and helped to sway the Court that Cuomo’s Order was too restrictive.
“Not only is there no evidence that the applicants have
contributed to the spread of COVID–19 but there are many
other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” the decision stated.
The majority found that Cuomo’s restrictions on churches would result in irreparable harm to the First Amendment and were not in the public interest, quoting precedent that held, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
However, the Court did not give religious groups carte blanche to claim persecution when their activities are restricted. The ruling pointed out that pandemic restrictions are not unconstitutional on their face, but rather that health and the public interest must be balanced with the Constitution.
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the decision stated. “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.”
So what should church members and constitutionalists take from this ruling? The most important takeaway is that temporary public health restrictions in a pandemic are not unconstitutional but they must be evenhanded and defensible based on the local situation. The Court will allow emergency orders to combat the spread of the virus but it will strike down broad overreach. This is good news for those who have worried for the past eight months that Coronavirus restrictions would usher in permanent tyranny.
Second, governments cannot single out religious organizations for stricter limitations than secular businesses and groups unless the rules are narrowly tailored to serve a compelling state interest. The First Amendment offers protection for the exercise of religion, but this protection is not unlimited.
I believe that if the New York churches had been shown to be superspreaders in the community that the Court might have handed down a very different ruling. Unfortunately, many churches around the country are not able to meet the safety standards of the Brooklyn Diocese and Agudath Israel. Many religious organizations around the country have been shown to be hotspots for viral outbreaks. These churches might find that targeted restrictions on their services would be upheld by courts that look at the facts of the situation and find a compelling public interest in slowing the outbreak.
If you’re are a pastor or are on the governing body of your church, you should absolutely take the Coronavirus pandemic seriously. You should exercise caution to protect both your members and your community. If your local government places draconian restrictions on your church, you can challenge those restrictions in court and you’ll have a better chance of winning if your church has not been the source of a COVID cluster.
The Supreme Court ruling shows us a core truth that constitutional rights are protected but are not absolute. Rights that are exercised responsibly are more likely to be affirmed by courts.
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