In a narrow 5-4 decision late Wednesday, the US Supreme Court prevented New York Governor Andrew Cuomo from setting strict limits to numbers of people gathered for worship in churches and synagogues out of concern for the spread of Covid-19.
The majority granted an emergency stay of an executive order imposing capacity limitations for accommodations used for religious services in COVID hotspots because it determined that the plaintiff religious institutions, the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, were likely to succeed once the order was fully litigated.
The order applied to areas classified as red or orange zones. Those in red zones could not admit more than 10 people, though essential businesses are permitted to freely admit individuals. In orange zones, attendance at places of worship is capped at 25 people, though essential and non-essential businesses are allowed to use their discretion at how many people can be admitted.
The Court majority held that the order was not neutral because it “single[s] out houses of worship for especially harsh treatment.” This led it to apply strict scrutiny in its analysis and determine that the order would likely not pass such scrutiny. This was especially true because places of worship have not been a source of outbreaks or spreading in the way that schools and other businesses have been.
The majority holding was issued as a per curiam opinion, meaning it was unsigned by any particular justice. Justices Neil Gorsuch and Brett Kavanaugh each issued their own concurrences clarifying how they would hold on the issue. Chief Justice John Roberts dissented, saying that injunctive relief was simply no longer necessary because none of the houses of worship at issue in this case are any longer subject to a fixed numerical restriction, as none at this time are in “red zones.” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan also dissented, arguing that the Governor has sufficient authority to respond in such a way to the pandemic.