Supreme Court Overrules Cuomo’s Pandemic Church Attendance Caps

November 26, 2020 Updated: November 26, 2020

The Supreme Court has blocked New York Gov. Andrew Cuomo from enforcing pandemic-related restrictions on attendance at houses of worship, a dramatic departure from the high court’s recent hands-off rulings giving states free rein to limit constitutional rights while combating COVID-19.

The 5–4 unsigned opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, which came late on Nov. 25, also applies to another case, Agudath Israel of America v. Cuomo.

Chief Justice John Roberts, who, since the pandemic began, has consistently sided with government power to protect public health over religious freedom, joined the court’s three liberal justices in voting to deny the injunction. The shift in the court’s stance comes weeks after the swearing-in of Justice Amy Coney Barrett, a constitutional conservative.

According to the majority ruling, the Democratic governor “is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits” on the litigants, pending the outcome of the underlying lawsuit that is now before the U.S. Court of Appeals for the 2nd Circuit.

Violating the order can lead to fines. New York City announced on Nov. 23 that it would impose a $15,000 fine on organizers of a Hasidic Jewish wedding attended by thousands of people earlier this month.

“We know there was a wedding,” Mayor Bill de Blasio, a Democrat, told reporters.

“We know it was too big. I don’t have an exact figure, but whatever it was, it was too big. There appeared to be a real effort to conceal it. Which is absolutely unacceptable.”

A day after saying “religious institutions have been a problem” because they hold “super spreader events,” Cuomo issued the executive order on Oct. 6, which has different levels of restriction for different zones.

Businesses designated as essential were exempt in every zone, including retail shopping, factories, shelters, airplane travel, and numerous other activities typically involving crowds of people in confined spaces.

Justices Rule

The executive order imposes restrictions on church and synagogue attendance that the Supreme Court characterized as “very severe.”

“In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25,” the court stated, adding that the applicants “contend that these restrictions violate the Free Exercise Clause of the First Amendment.”

Citing various remarks made by Cuomo, Agudath Israel argues 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 noted. Both the Diocese and Agudath Israel “maintain that the regulations treat houses of worship much more harshly than comparable secular facilities.”

The applicants have established “that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.”

The state “has not claimed that attendance at the applicants’ services has resulted in the spread of the disease,” and has not demonstrated “that public health would be imperiled if less restrictive measures were imposed,” according to the Supreme Court.

“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. 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.”

In a concurring opinion, Justice Neil Gorsuch argued that judges have to protect fundamental rights and “may not shelter in place when the Constitution is under attack.”

“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.”

In a dissenting opinion, Roberts criticized the majority, writing, “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.”

Justice Sonia Sotomayor also sided with state governments, arguing that state discrimination against religious institutions was “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.”

Attorneys Comment

Attorneys from three public interest law firms that have been fighting pandemic-related restrictions on religious institutions told The Epoch Times on Thanksgiving Day that they were pleased with the new Supreme Court ruling.

Senior counsel Jeremy Dys of First Liberty Institute, which filed a friend-of-the-court brief in the case and in the Agudath Israel case, said that justice had been done.

“The justices have reminded the nation—and especially the executives in each state—that the Free Exercise of Religion is a guarantee of the Constitution to be respected, not laid aside, even during a pandemic,” he said.

“As the court explained, it is possible to combat the virus while protecting religious liberty.”

Ryan Tucker, senior counsel for the Alliance Defending Freedom and director of the Center for Christian Ministries, said the Constitution “forbids government officials from treating religious Americans like second-class citizens.”

As the court made clear, Cuomo’s executive order “singled out houses of worship for especially harsh treatment, barring many from attending religious services.”

“In light of this ruling, we call on all elected officials to amend” any rules that discriminate on the basis of religion, Tucker said.

Thomas More Society Special Counsel Christopher Ferrara said the Supreme Court stated that “governors can no longer use a public health emergency as a pretext for dictates shutting or severely restricting the use of houses of worship while secular businesses and activities they deem ‘essential’—and even certain favored ‘non-essential’ secular businesses and activities—are not subjected to the same draconian restrictions. What is considered ‘safe’ for grocery stores, liquor stores, and massage parlors must be considered safe for churches and synagogues.”

“The court has also ended reliance on the outdated precedent known as Jacobson v. Massachusetts, from a compulsory vaccination case, which held that individual liberty was subject to the police power of the states,” he said.

That decision, he said, is “a 115-year-old anachronism, which over the past eight months has morphed into a kind of super-precedent for any sort of restriction on constitutional freedoms governors feel like imposing during a public health crisis.”

“Religious liberty has been rescued from the brink of extinction in the name of COVID-19, a virus with a 99.8 percent survival rate,” Ferrara said.

Mark Tapscott contributed to this report.