Mission Church in the Roxbury neighborhood of Boston, Massachusetts. The formal name of the church, which is Roman Catholic, is the Basilica of Our Lady of Perpetual Help. Photo by Mark Nakib, courtesy of Wikipedia.
New York state’s coronavirus restrictions on religious gatherings to 25 in some circumstances and 10 in others violate the federal constitution, the U.S. Supreme Court ruled late Wednesday night.
The court issued the 5-4 decision shortly before midnight. New Justice Amy Coney Barrett joined the four conservatives on the court, with sometime-swing-voter Chief Justice John Roberts joining the three liberals.
The high court issued a temporary injunction against New York Governor Andrew Cuomo’s severest restrictions. The majority opinion suggests the court would also overturn the executive order permanently if the issue comes before it again.
The decision will likely affect church restrictions in other states.
New York’s restrictions are similar to those in effect in Massachusetts from March 23 to May 18. Massachusetts Governor Charlie Baker eventually abandoned an executive order limiting religious gatherings to 10 people under pressure from a federal lawsuit from a Worcester pastor and from the U.S. Attorney General.
The decision also shows the effect of President Donald Trump’s successful nomination of Barrett to the high court shortly before the presidential election. In comparable cases earlier this year, the court ruled 5-4 against churches, with Justice Ruth Bader Ginsburg joining the then-majority. Ginsburg died September 18. Barrett replaced Ginsburg on October 26.
On October 6, New York Governor Andrew Cuomo issued an executive order (Executive Order 202.68) that set conditions limiting in-person religious gatherings based on the number of cases of coronavirus in that county. Religious gatherings were limited to 25 people in so-called orange zones and 10 people in so-called red zones.
The Roman Catholic Diocese of Brooklyn and several Jewish synagogues challenged the order in federal court. On October 16, a federal judge appointed by President Bill Clinton found the church restrictions constitutional. The plaintiffs appealed. A federal appeals court ruled against their request for an injunction against the governor’s order.
Late last night, the federal Supreme Court majority highlighted the ability of businesses deemed “essential” by the governor to operate with few restrictions on the number of people who can come while religious activities explicitly protected by the First Amendment of the U.S. Constitution are severely limited.
Cuomo’s executive order leads to what the court called “troubling results” – such as a large store in Brooklyn that could draw hundreds of people during a day when a nearby church or synagogue is limited to 10 or 25.
The court said that the governor’s order also does what it called “irreparable harm,” noting that Roman Catholics are in practical terms barred from receiving communion and Orthodox Jews are missing “important religious traditions” that can only be carried out in person.
“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,” the court majority said in an unsigned opinion in the case, which is known as Roman Catholic Diocese of Brooklyn v. Cuomo.
In a concurring opinion, Justice Neil Gorsuch ridiculed Governor Cuomo’s church restrictions, noting that they attempt to severely limit the number of people who can attend a church or synagogue no matter what health and safety precautions the church or synagogue takes.
“At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers ‘essential’,” Gorsuch wrote. “And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, 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 also took issue with U.S. Supreme Court decisions issued earlier this year that upheld the legality of comparable government restrictions on religious gatherings because of coronavirus, noting that the justices supporting them cited the relative newness of the coronavirus pandemic in declining to overrule governor’s executive orders.
“Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch wrote.
In addition to Barrett and Gorsuch, conservative justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh also voted with the majority.
Chief Justice Roberts was joined by liberal justices Stephen Breyer, Elana Kagan, and Sonia Sotomayor in the minority, which voted to uphold Cuomo’s restrictions.
Breyer pointed out in a dissenting opinion that Governor Cuomo recently moved Brooklyn from orange to yellow, which allows churches and synagogues to operate at up to 50 percent capacity. Cuomo issued the order November 18 – a week before the high court ruled.
As for the previous restrictions of 10 and 25 congregants at a religious service, Breyer noted that the numbers the governor allows “are indeed low” – “But whether, in present circumstances, those low numbers violate the Constitution’s Free Exercise Clause is far from clear …” Breyer wrote.
Sotomayor, in a separate dissenting opinion joined by Kagan, noted that the Supreme Court turned down churches seeking relief from governor’s orders earlier in the year.
“I see no justification for the Court’s change of heart, and I fear that granting applications such as the one filed by the Roman Catholic Diocese of Brooklyn … will only exacerbate the Nation’s suffering,” Sotomayor wrote. “… 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, now infecting a million Americans each week, spreads most easily.”
Gorsuch in his concurring opinion acknowledged the seriousness of the coronavirus emergency, and he alluded to “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 concurring circumstances, we may not shelter in place when the Constitution is under attack,” Gorsuch wrote. “Things never go well when we do.”
Mission Church in the Roxbury neighborhood of Boston, Massachusetts. The formal name of the church, which is Roman Catholic, is the Basilica of Our Lady of Perpetual Help. Photo by Mark Nakib, courtesy of Wikipedia. 
