William G. Ross, Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University, discusses the Supreme Court's ruling against coronavirus containment measures, invoking the First Amendment’s guarantee of free exercise of religion...
The U.S. Supreme Court last week issued its first ruling against coronavirus containment measures, invoking the First Amendment’s guarantee of free exercise of religion to enjoin an executive order by New York’s governor limiting attendance at religious services to 10 or 25 persons in areas classified as having a high risk for infections. The Court’s joint 5-4 decision in two cases, Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel of America v. Cuomo, involved restrictions that were similar in many ways to limitations on religious services in California and Nevada that the Supreme Court refused to enjoin in two 5-4 decisions six months ago, South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolek.
Although New York’s restrictions may have been at least somewhat more extensive and arguably were more discriminatory than were those in the California and Nevada cases, it seems very likely that the Court’s flip ultimately was the result of the departure of Ruth Bader Ginsburg, who voted against the injunction in the California and Nevada cases, and her replacement by Amy Comey Barrett, who voted in favor of the injunction in the New York case, because all of the other eight Justices voted the same way in both sets of cases. Justices Clarence Thomas, Samuel A. Alito, Neil Gorsuch, and Brett M. Kavanaugh voted to grant all of the requested injunctions, while Chief Justice John G. Roberts and Justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan voted against the injunctions in both sets of cases. This provides a dramatic example of how Supreme Court decisions may be altered by the appointment of a single Justice, even during a short period of time.
The injunction remains in force pending a ruling by the Court of Appeals for the Second Circuit on the merits of the challenge to the governor’s order.
Although this injunction provides at least a step in the right direction for other organizations that may seek to constitutionally challenge other containments and lockdown orders, it is not clear whether the Court will extend constitutional protections outside the context of the First Amendment.
In Cuomo, the Court found that the restrictions on religious worship were not “neutral” and of “general applicability” since religious institutions were restricted more heavily than various secular businesses, including acupuncture facilities, campgrounds, and garages. In the absence of neutrality and general applicability, the restrictions needed to satisfy the “strict scrutiny” standard of judicial review, which requires government restriction of First Amendment rights to be “narrowly tailored” to satisfy a “compelling state interest.” Although the Court found that stemming the spread of the virus was a compelling interest, the Court held that the restrictions were not narrowly tailored because they were “far more restrictive” than other virus-related measures that the Court had reviewed, particularly those in the California and Nevada cases; they were “much tighter than those adopted by many other jurisdictions hard-hit” by the virus; and they were “far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.”
The Court also determined that there were “many other less restrictive rules that could be adopted to minimize the risks to those attending religious services,” particularly correlating maximum attendance “to the size of a church or synagogue.” The Court pointed out that nearly all of the 26 churches in the Brooklyn diocese of the Roman Catholic Church that were immediately affected by the order could accommodate at least 500 persons, about 14 could seat at least 700, and two could seat more than a thousand. Likewise, one synagogue in the affected area could seat as many as 400.
In determining that the restrictions caused “irreparable harm,” an essential criterion for the issuance of an injunction, the Court declared that the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable harm,” quoting Elrod v. Burns (1976). The Court pointed out that the limitation of attendance to ten persons would exclude “the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat.” The Court explained that watching services remotely “is not the same as personal attendance” because “there are important religious traditions in the Orthodox Jewish faith that require personal attendance.” The Court likewise explained that “Catholics who watch a Mass at home cannot receive communion.” If the challenges had not been brought only by Roman Catholics and Orthodox Jews, the Court also might have pointed out that communal worship is an important element of most religious traditions and that inability to receive Communion is a critical spiritual deprivation not only for Roman Catholics but also for Orthodox Christians and for most Protestants.
The Court also held that the injunction would not harm the public, another showing required for an injunction, because the state had not claimed that attendance at the religious services had resulted in the spread of the virus and because “the State has not shown that public health would be imperiled if less restrictive measures were imposed.”
While the Court acknowledged that the Justices “are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the Court declared that “even in a pandemic, the Constitution cannot be put away and forgotten,” especially since these restrictions “strike at the very heart of the First Amendment’s guarantee of religious liberty.” The Court, therefore, explained that it had “a duty to conduct a serious examination of the need for such a drastic measure.”
Although the governor by the time of the Court’s decision had re-classified the areas in question to permit services at 50 percent of occupancy, the Court held that the matter was not moot because “the applicants remain under a constant threat that the area in question will be reclassified,” particularly since the “Governor regularly changes the classification of particular areas without prior notice.”
In a trenchant concurrence, Justice Gorsuch complained that the governor had severely restricted religious worship even though hardware stores, liquor stores, bicycle repair shops, acupuncturists, lawyers, accountants, and insurance agents were not so limited. “So, at least according to the Governor,” Gorsuch wrote, “it may be unsafe to go to church, but it is always fine to pick up 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 observed that “[t]he 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…That is exactly the kind of discrimination the First Amendment forbids.” Pointing out that “certain other Governors have issued similar edicts” asserting “the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples,” Gorsuch cogently remarked that “[i]n far too many places, for far too long, our first freedom has fallen on deaf ears.”
One of the most useful features of Gorsuch’s concurrence was that it blew the whistle on Jacobson v. Massachusetts (1905), the decision that advocates of draconian lockdown measures often have cited as a talisman that wards off constitutional objections to such measures. In Jacobson, the Court sustained the constitutionality of a state law enacted during a smallpox epidemic that required persons to receive a vaccine unless they qualified for an exemption or paid a five-dollar fine ($140 in 2020 dollars). Gorsuch pointed out that “Jacobson’s claimed right to bodily integrity…was avoidable and relatively modest” and was sustained under a rational basis standard of review although it “might even have survived strict scrutiny, given the opt-outs available to certain objectors.” Gorsuch correctly pointed out that Jacobson provides no authority for sweeping deprivation of religious liberty. Expressing puzzlement about why some persons have “mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic,” Gorsuch surmised that “much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.”
In a dissenting opinion, Chief Justice Roberts acknowledged that “[n]umerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” but he explained that the Court did not need to rule on the issue at the present time because the governor had now removed the restrictions in the affected areas to permit the applicants to hold services with up to 50 percent of capacity. “The Governor might reinstate the restrictions,” Roberts acknowledged, “But he also might not.”
Justice Breyer’s dissent likewise contended that the revisions eliminated the need for an injunction. Regarding the merits of the case, Breyer acknowledged that the 10 and 25 numbers “are indeed low,” but that “whether…those low numbers violate the Constitution’s Free Exercise Clause is far from clear” because the number of deaths and illnesses caused by the virus provided the state with “countervailing arguments based upon health, safety, and administrative considerations that must be balanced against Applicants’ First Amendment challenges.”
In another dissent, Justice Sotomayor expressed deference toward medical experts who claim that the virus is spread by “large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time,” which, as she pointed out, does not generally occur in bike repair shops and liquor stores. She warned that “Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus…spreads most easily.”
Despite the Court’s contention that the New York order was “far more restrictive” than were the Nevada and California orders, the difference between the orders was not really so great. California’s governor limited attendance at places of worship to 25 percent of building capacity or a maximum of one hundred attendees, while Nevada’s governor decreed that no more than fifty persons could attend a worship service. The Nevada and California orders also could be regarded as at least comparably discriminatory. Although California applied the same or similar restrictions to lectures, concerts, theaters, and spectator sports, it did not, as Justice Brett Kavanaugh emphasized in his dissent, apply caps to factories, offices, supermarkets, restaurants, retail stores, pharmacies, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. In the Nevada case, the fifty-person worship limitation contrasted glaringly with a fifty percent capacity limitation for casinos, bowling alleys, fitness centers, and various other entertainment businesses. As Justice Samuel Alito remarked in his dissent in the Nevada case, it was “hard to swallow” the argument that churches presented a greater public health risk than casinos, especially because casinos serve alcohol, “which is well known to induce risk-taking, and drinking generally requires at least the temporary removal of masks.” The New York edict, as Justice Sotomayor pointed out in her dissent in Cuomo, also was less restrictive than those in Nevada and California to the extent that the part of the New York order enjoined by the Court did not apply to the entire state. In any event, the distinctions between the cases did not change the opinions of any of the eight Justices who participated in both cases, with the possible exception of Roberts, whose vote was ultimately the same in all three cases.
Although the New York, California, and Nevada decisions could be viewed as yet another example of the Court’s division between “liberals” and “conservatives,” there is no reason why such a dichotomy needs to explain these cases. The sanctity of religious liberty is a principle that Americans of all political persuasions ought to cherish. Although conservative organizations and publications appear to have been more critical of the containments than their liberal counterparts have been, I have seen no evidence of a comparable divide among individuals. Two of the most libertarian persons I have ever known favor state-mandated lockdowns because they think that the virus is a monumental health hazard, while several of my most politically progressive friends strongly oppose these measures because they believe that they will cause, and indeed already have caused, far more suffering, illness, and death than the virus itself, particularly among the most vulnerable members of society.
As in so many other judicial decisions, a cost/benefit analysis based upon arithmetic is at the heart of the Court’s New York, California, and Nevada decisions. As Roberts observed in his concurrence in the California case, “[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” At least five and perhaps six of the Justices in the New York case apparently did not agree with the contentions of Breyer and Sotomayor in their dissents that the health hazards of attending church were so great as to justify the governor’s restrictions on religious worship. Although the Court ought to accord considerable deference to the decisions of the coordinate branches of government, particularly when such decisions are based on scientific authority, there is a division of authority among health experts about the extent to which virus containment measures are needed.
It will be interesting to see how the Supreme Court will apply a cost/benefit analysis when and if it adjudicates cases involving the constitutionality of virus containment measures that do not infringe religious liberty or other freedoms protected by the First Amendment. Several challenges to such measures are working their way through the judicial system, and they face severe obstacles because the Court since the Judicial Revolution of 1937 has employed the rational basis standard of review in adjudicating the constitutionality of economic regulatory legislation. Not since 1936 has the Court invoked the doctrine of substantive due process to strike down economic legislation. To do so, the Court would need to find that such measures lacked a legitimate purpose or that the measures were not a rational means of achieving the purpose. Although the Court presumably would find that the containment of the coronavirus is a legitimate purpose, the Court might find that at least some of the draconian containment measures are not rationally related to that interest, or at least that less restrictive means are available to achieve that purpose.
Although the resurrection of the long-dormant doctrine of the economic due process seems at first glance like an extreme step for courts to take, the lockdowns are so extreme and unprecedented that the revival of substantive due process in an economic context no longer is unthinkable. Judge Stickland of the U.S. District Court for the Western District of Pennsylvania in September invoked economic due process to enjoin lockdowns mandated by the governor of Pennsylvania, County of Butler v. Wolf (W.D. Pa. 2020). The Third Circuit later stayed the injunction pending the adjudication of the challenges to the lockdowns. In granting the injunction, Judge Stickland aptly remarked that “Never before has the government taken a direct action which shuttered so many businesses or sidelined so many employees and rendered their ability to operate and to work, solely dependent on government discretion.” The recent Supreme Court decisions involving freedom of religion contain hints that the Court may be receptive toward substantive due process arguments. In particular, Justice Alito observed in the Nevada case that “a public health emergency does not give Governors and other public health officials carte blanche to disregard the Constitution for as long as the medical problem persists.”
But even if the Court does not halt draconian virus containment measures in any context other than religious freedom, the Cuomo decision alone constitutes welcome and significant protection of constitutional liberty.
William G. Ross is the Albert P. Brewer Professor of Law and Ethics at the Cumberland School of Law at Samford University, where his courses include constitutional law and American constitutional history, subjects about which he has published various books and articles.
Suggested Citation: William G. Ross, The Supreme Court was Right to Enjoin New York’s Virus-Related Restrictions on Religious Worship. What is Next?, JURIST – Academic Commentary, December 3, 2020, https://www.jurist.org/commentary/2020/12/william-ross-scotus-first-amendment-covid/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at email@example.com.
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