In what could prove to be a landmark decision upholding the First Amendment’s guarantee of religious freedom of assembly and practice, the Supreme Court late Wednesday slapped down New York Gov. Andrew Cuomo’s limits on worship assemblies in certain hard-hit areas of New York.
In a 5-4 decision, the Court said Cuomo’s restriction of religious assemblies in the targeted areas to no more than 25 individuals in some and no more than 10 in others must address a “compelling” state interest, satisfy “strict scrutiny” and be “narrowly tailored” to minimally impinge on First Amendment rights.
But Cuomo’s regulations failed on both counts, saying “Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as ‘narrowly tailored.’
“They are 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 also held that “there can be no question that the challenged restrictions, if enforced, will cause irreparable harm … If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred.
“And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance.”
Religious liberty advocates asked by HillFaith for comment praised the Court for its decision.
First Liberty Institute Senior Counsel Jeremy Dys told HillFaith Thursday morning that “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. As the Court explained, it is possible to combat the virus while protecting religious liberty.”
“The Free Exercise of Religion is a guarantee of the Constitution to be respected, not laid aside, even during a pandemic.”
Ryan Tucker, Alliance Defending Freedom Senior Counsel and Director of Center for Christian Ministries, also lauded the decision, telling HillFaith Thursday that the ruling “affirmed that ‘even in a pandemic, the Constitution cannot be put away and forgotten.’ The Constitution forbids government officials from treating religious Americans like second-class citizens.”
Tucker added that the decision was clear that “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 religious discriminatory orders. The First Amendment requires the government to protect the rights of its religious communities.”
And Thomas More Society Special Counsel Christopher Ferrara applauded the late-night Thanksgiving Eve decision, “The Supreme Court has made it clear 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 Constitution forbids government officials from treating religious Americans like second-class citizens.”
The decision acknowledged that the nine Justices on the nation’s highest court “are not public health experts,” 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 blistering concurrence, Justice Neil Gorsuch observed that, “as almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task.
“People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops.
“No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of ‘essential’ businesses and perhaps more besides.
“The 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.
“Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all ‘essential’ while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
Gorsuch also sounded a warning to other state officials that have taken similar approaches in singling out religious congregations for Covid restrictions:
“Nor is the problem an isolated one. In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. In far too many places, for far too long, our first freedom has fallen on deaf ears.”
Similar worship restrictions are in place in numerous other states, most notably in California where nearly a dozen churches representing both Protestant and Catholic congregations are suing Gov. Gavin Newsom.
“In far too many places, for far too long, our first freedom has fallen on deaf ears.”
Liberal Justice Stephen Breyer agreed to refer the petition that prompted Wednesday’s decision to the full court.
Breyer, however, was one of four dissenters, which notably also included Chief Justice John Roberts.
The newest Justice on the Court, Amy Coney Barrett, joined the conservative majority in the ruling.
While the Court majority granted a temporary reprieve as the case makes its way up the appeals ladder, the decision noted that “the applicants have clearly established their entitlement to relief pending appellate review.
“They have shown 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.”
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