The Supreme Court made waves earlier this week when it temporarily stopped New York Governor Andrew Cuomo from limiting the number of people who could attend religious services in COVID “hot zones”. Services were limited to 10 people in Red Zones and 25 people in Orange Zones.

Has the addition of Justice Amy Coney Barrett to the Court, along with the other Trump appointees, Neil Gorsuch and Brett Kavanaugh, issued in a new age of special protections for religious freedom? Probably yes, but to a much more limited degree than some people hope for and some other people fear.

Cuomo severely restricted the number of people who can attend religious services in high COVID areas because he believes these services, where people gather indoors for an extended period and sing and pray together, are more dangerous places for contagion than retailers such as liquor and hardware stores. That’s sensible in theory but it doesn’t account for other factors. The churches and synagogues that brought the lawsuit were exemplary in their safety precautions such as social distancing and mask enforcement. Services at these institutions could not be tied to a single outbreak of COVID. Also, the churches and synagogues are quite large and could accommodate many more people with plenty or room for social distancing.

Said the Court: “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. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches immediately affected by the Executive Order can seat at least 500 people, about 14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to 400. It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other activities that the State allows.”

It is difficult to understand how allowing more than 10 people at a time to attend mass in a 1000-seat church is a more serious risk than allowing even a few people into a cramped liquor store. The Court, therefore, held that, at least for now, the restrictions are too draconian and too poorly justified to be enforced.

Also, the Court held that the impact of Cuomo’s order on religious freedom was too substantial even though Cuomo had recently re-designated the areas in which the affected churches and synagogues are located to “Yellow Zones”, thereby loosening the restrictions. The four dissenting Justices argued that the re-designation meant that the Court should not have decided the case at all. But the majority disagreed, writing: “injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. Moreover, if reclassification occurs late in a week, as has happened in the past, there may not be time for applicants to seek and obtain relief from this Court before another Sabbath passes.”

Clearly, the Court was very concerned not just about substance, but about process. The governor could change their designation again at any time, for any reason, without warning or an opportunity to object. As Justice Samuel Alito discussed in a recent address, since the COVID crisis Governors have been using their executive authority to place unprecedented restrictions on people’s movements and activities. The danger of COVID may well justify most of these restrictions. But the amount of discretionary power this places in the hands of governors is concerning. They can decide who gets to stay open, who gets to go to go to religious services, what time people need to return to their homes, and so forth. There is a serious danger that this sort of power can be used in a politically motivated way or to target unpopular groups.

Constitutional Law is largely a history of the Supreme Court limiting the government’s power to restrict constitutional rights even during times of crisis. When the Court fails to do so courageously, travesties such as the Japanese American internment cases can happen. In the current case, Orthodox Jews have accused Governor Cuomo of scapegoating them for the spread of COVID. Perhaps they are just being paranoid. But the level of public hatred against them is severe. As The New York Times reported recently: “More than half of the hate crimes in New York City last year were attacks on Jewish people. Orthodox Jews are particularly at risk.”

Imagine if Cuomo’s orders disproportionately targeted African American churches. The governor needs power, but not unchecked power. Governors are elected officials who sometimes cater to popular prejudices. One of the Court’s most important duties is to ensure that they do not target unpopular groups in the name of protecting the public.

The Court has made it clear that the government must be accorded substantial deference in dealing with COVID. But if the government prevents people from taking communion or worshiping with their Rabbi on the High Holidays, it is now equally clear that the government must show that its restrictions are narrowly tailored to protect the public health. Here, it failed to show why the 10 person “Red Zone” restriction was the same for a Church that could seat fifty or a thousand people. So the Court has not tied the government’s hands, but it is forcing it to be more careful and transparent in exercising the extraordinary power it holds during the COVID crisis.



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