Supreme Court Strikes Down Cuomo Executive Order on Religious Service Attendance
Photos from the opening of the new Delta Air Lines terminal in LaGuardia Airport in Queens, NY, on Tuesday, Oct. 29, 2019. Photo by Chris Rank for Rank Studios released by Delta News Hub via Wikimedia Commons.
While you were sleeping, a legal bomb went off in the ongoing debate over how far executive power can reach into daily life with COVID-19 restrictions, as the Supreme Court ruled 5-4 against New York Governor Andrew Cuomo’s restrictions on houses of worship.
New York Gov. Andrew Cuomo, a Democrat, issued the executive order at the center of both disputes in October. As part of the state’s effort to combat COVID-19, the executive order and an initiative that it implements identify clusters of COVID-19 cases and then take action to prevent the virus from spreading. An area immediately around a cluster is known as a “red” zone, where attendance at worship services is limited to 10 people. The area around a “red” zone is known as an “orange” zone; attendance at worship services there is limited to 25 people. “Yellow” zones surround “orange” zones; attendance there is limited to 50% of the building’s maximum capacity.
The diocese went to the Supreme Court on Nov. 12, asking the justices to block the attendance limits after the lower courts declined to do so. It told the Supreme Court that as a practical matter, the order “effectively bars in-person worship at affected churches – a ‘devastating’ and ‘spiritually harmful’ burden on the Catholic community.”
The synagogues followed on Nov. 16. They stressed that although they have complied with previous COVID-19 rules, the restrictions imposed by Cuomo’s order preclude them from conducting services for all of their congregants, and they argued that Cuomo’s order targeted Orthodox Jewish communities because other Orthodox Jews had not complied with the rules.
Cuomo pushed back last week, responding that the restrictions on attendance no longer apply to the churches and synagogues, which are in areas that are now designated as yellow zones. But in any event, Cuomo told the justices, the order isn’t focused on gatherings because they are religious, but because of the possibility that they could be “superspreader” events. If anything, Cuomo added, the order treats religious gatherings more favorably than secular events – such as plays and concerts – that involve similar risks.
In an unsigned opinion in the Catholic diocese case that also applies to the synagogues’ case, the five-member majority blocked the state from enforcing the attendance limits while the challengers continue to litigate the issue at the U.S. Court of Appeals for the 2nd Circuit and, if necessary, return to the Supreme Court for a final decision on the merits. The court explained that Cuomo’s order does not appear to be neutral, but instead “single[s] out houses of worship for especially harsh treatment.” For example, although a synagogue or a church in a red zone is limited to 10 people at a service, there are no limits on how many people a nearby “essential” business – which can include acupuncture or a camp ground – can admit.
Because the Cuomo order is not neutral, the court continued, it is subject to the most stringent constitutional test, known as strict scrutiny. It fails that test, the court concluded, because the order is too broad. There is no evidence that these synagogues and churches have contributed to outbreaks, and other, less restrictive rules could have been employed instead – such as basing the maximum attendance on the size of the facility. And if the restrictions are enforced, the court added, they will result in permanent harm to people who cannot attend and for whom a livestream of services is not an adequate substitute.
The court’s opinion in the two cases was released a few minutes before midnight on the night before Thanksgiving.
Justice Gorsuch in particular was blunt in his opinion:
Hard to tell if Gorsuch was aiming to troll Roberts or Cuomo harder in his concurrence. pic.twitter.com/yL4ICqeWSu
— Steven Mazie (@stevenmazie) November 26, 2020
Part of Justice Sotomayor dissent which Justice Kagan joined:
Justice Breyer, joined by Justices Sotomayor and Kagan, dissents more vociferously. pic.twitter.com/ncWbnpIr2f
— Steven Mazie (@stevenmazie) November 26, 2020
The Diocese court order can be found here and the reciprocal Synagogue case order can be found here.
I know people want to see this as a big deal but I’m just not sure it is. The case will go on in the 2nd Circuit, and frankly, it should be allowed to so that the question it raises can be answered. The constitutional dimension could probably be avoided altogether with a neutral order. Of course expecting basic understanding of the law from any elected official has long been way too much to ask.Report
Just reading part of Justice Breyer’s dissent, the obvious bad part of the law is the 10 persons or 25% of capacity whichever is lower. In my experience, people might grumble about 25% capacity, but we’d see broad compliance… as long as that ‘Redzone’ is enforced neutrally. But that’s what makes it not-neutral.
Try enforcing 10 persons or 25% (whichever is lower, mind) capacity at Costco – which if a redzone is a redzone… then the point is that any 10 random people will have x% likelihood of being sick. So… either it’s about capacity and space or it’s about % likelihood of encountering a sick person regardless of capacity or space.
We can either attempt to build a program to try to manage the spread, or we can try to pretend we are but legislate economic activity (or other activities) as if they don’t also spread the virus. The political problem is we’re not attempting to limit the spread – because there’s no real consensus on how to do that – so we’re performing theatrical regulations that are so obviously porous that they fail as both theater and spread reductions. And we haven’t even gotten to the obvious defections of the regulating class.Report
You’re right in principle. Though I do think the more pious should be very careful what they wish for with this fight. It’s harsher measures (uniformly applied of course) that are less likely to be constitutionally suspect, not those that leave room for discretion.Report
I’m not too concerned… in the event that the restrictions are neutrally applied *and* draconian… you’ll see the ‘proper’ people rebelling at the nonsense of 10 people per Costco and it will be abandoned right quick.Report
I concur with Roberts that neutral is not just how many people are there, but how long they are there, and what people do when they are there.
When I go to Costco, I do not stand for 45 minutes shoulder to shoulder with the same exact people, while we are all talking (aka praying) or singing. I stay reasonably separated from every other person, we do not talk to each other, and we are all circulating around, minimizing the exposure to any specific person.
With the same amount of people, virus transmission is lower at Costco than in a religious service. Just focusing is the number of people and not their behavior is either special pleading or pure laziness. What it is not is a neutral analysisReport
Then why not construct the order like that?Report
Probably because it would make it extremely difficult to administer. Going by number of people inside is an easier criterium that is a proxy to the neutral objective, which is reduce the virus transmission.
I do agree that the order could have a preamble explaining the relationship between how many, how long, and doing what before actually setting up the limits in the different categories. But then I am an engineer, and I like explanations for everything.
From a legal point of view, I don’t know if the preamble would have or have not made any difference. We know that the Supreme Court considers that A well regulated Militia, being necessary to the security of a free State, as surplusage. I suspect they would do the same here.Report
Perhaps, but your example above of Costco provides a good metric. You set the metric to be persons/sq ft. Say 1 person per 100 sq ft (that’s close to a 6 foot circle). If your building is 100,000 sq ft of public space, you can have 100 people in that public space, maintaining distance.Report
That’s basically the same as % of maximum capacity, which is number of per soft times useful área times a factor to minimize spread. It still does not consider customers turnaround (I can let in more people if they linger inside less) and type of activity (do they mostly just breathe, or are they expected to talk/sing/pray?
Costco is not just safer than a church, it’s also much safer than a restaurant. A church and an indoor sitting restaurant are in the same ballpark regarding the virus transmission.
Perhaps the best solution is to create a metric considering my three variables, or as many as reasonably appropriate, and have each church, restaurant, or supermarket apply for a COVID occupancy permit. The permit would establish people per 100 sq ft Niall virus threat conditions, with different values for green yellow, orange, red, maroon, dark violet, almost black, etc. local transmission levels.
I’m an engineer, I can’t help it making it into the weedsReport
Being an engineer myself, I think that is fine.
Just don’t do stupid crap like singling out religious gatherings in the order.
PS nothing in your metrics would require the applicant to do calculus, or even algebra, so it should be easy enough.Report
I can’t speak for every church everywhere, obviously… but among the churches I’ve been to during coronatide… no-one has been shoulder to shoulder in months. Churches have implemented all the other common sense requirements such as distancing, extra sanitizing, special rules for communion, minor changes to the rituals to suppress certain person-to-person contact (like the sign of peace) and choirs are generally absent.
I’m personally campaigning for a silent service with a single chanter… but I’ll confess here to using the virus as an attempt to impose my aesthetics on everyone else… for their own good, of course.
On the other hand, at Costco you have a bottleneck where every single person passes in contact with a small number of people who are there for hours and hours… I don’t blame you for imagining that Costco is reducing your risk… it’s a story we’re telling ourselves to manage our risk. And this story that NY was telling didn’t pass the test.Report
Killing themselves and making the pandemic for freedumbs without acknowledging how religion is supposed to teach obligations to others.Report
Can we agree as a matter of law that restrictions that put religious activity under greater scrutiny than non-religious activity are a violation of the Constitution? Can we agree philosophically that one man’s freedumbs are another man’s freedoms? Can we acknowledge as a historical fact that, if freedom of religion were recognized more universally, both of us would have much larger family trees?Report
Can we agree as a matter of law that restrictions that put religious activity under LESS scrutiny than non-religious activity are a violation of the Constitution?
Most of the [fairly recent] Religious Freedom argument is that to claim “my religion tells me I have to do this (*)” should be a walk out of jail card to many general obligations, a card that is not available to others, and that, in many cases, like this particular one, put extra burdens on others, like the relatives and coworkers of the worshipers that are now allowed to engage in activities that have been proved to be conducive to spreading the virus.
(*) This is even before we add the fact that in US law, religion is whatever I claim it is. Courts are not allowed to determine if whatever I argue is, for instance, Catholic doctrine, truly is. I can claim that Catholicism requires me to not pay property taxes, and the courts are not allowed to rule “Catholicism does not require such a thing”(**)
(**) I am really, really looking forward to someone making a claim of this nature. I want to see the SC really establishing what the limits of Religious Freedom are, beyond Freedom of Conscience and Freedom of Worship.Report
An interesting question. Are there cases where religious institutions should be granted more leeway than non-religious? My gut says no, but the Framers would probably disagree with me. Anyway, in this case being discussed, it does appear that religious activity was under greater restriction than non-religious. I’ve been attending services for months, shimmering in sanitizer gel. We’ve been at a 30% capacity, with only one person singing (at least 10 feet away from the congregation), and we have recently installed a top-of-the-line air circulation system. You could probably perform surgery in there.Report
Yeah, it’s the lack of uniformity.
Imagine, if you will, a rule that says that Marijuana Bars are okay. Go there, smoke up, eat a brownie, whatever. BUT! Rastafarian services are shut down because marijuana smoking makes Covid transmission more likely.
Wait. What? What about the Marijuana Bars? We were just talking about them!
“What? Are you opposed to marijuana? It’s not the 80’s anymore.”
The problem is that the rules are capricious. If the lockdown hit bars and restaurants as hard as churches, the government could get away with saying “hey, the rule applies to everybody”.
But saying that marijuana bars are okay but rasta services ain’t?
That’s going to end up in court and the court’s going to say “nope, rasta services are okay too”.Report
In that vein:
Report
The “simply” does all the heavy lifting here. Many competent readers of both English and legalese would have told you that the regulations at issue were “facially neutral towards religious activities.” I’m not at all surprised at the particular Justices who disagreed. They have been spoiling for a fight and have been ignoring such normally conservative judicial values as standing and procedural regularity for a chance to get their licks in.Report
The order specifically sets capacity limits for ‘houses of worship.’
Full text is here:
https://www.governor.ny.gov/news/no-20268-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergencyReport
Yes, it does, but that’s not what facial neutrality means. Unless you’re looking for a fight. Then just about anything will do.Report
Then it should be a slam dunk in the 2nd Circuit, right?Report
It was the first time.Report
I’m not a lawyer, so I don’t know if “standing” has anything to do with this. I think it’s a good thing that the Chief Justice leans toward the narrowest possible decision, but there’s nothing wrong with the Court nudging executives in the right direction. It was the right decision, although it might not have been the right time.
Gorsuch says, “Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow.” But I think Roberts has the better position. There is, of course, no reason to discuss the Democratic-nominated justices, who probably read as far as “government intervention” before they wrote their opinions. At least Breyer made more of an effort than Sotomayor.Report
there’s nothing wrong with the Court nudging executives in the right direction. It was the right decision, although it might not have been the right time.
There are people who would agree with that. In normal circumstances, however, self-styled conservative judges wouldn’t.Report
I don’t think you’re correct.Report
The analysis is probably a bit different. A privileging of religion is more likely to create an establishment clause issue, a restriction is more likely to create a free exercise issue.Report
This will be one of those things that future history books cite as one of the many reasons why America suffered so many needless deaths in the pandemic of the early ’20s.
No matter the regulation, whether it is drawn broadly or narrowly, whether it follows a clear logic or not, there is some large contingent of Americans who refuse to take the virus seriously.Report
Also Europe. We’re tracking about evenly with Europe.Report
My mass gatherings all summer were important. I knew that there were risks but there were more important things at stake and the benefits outweighed the risks.
Your mass gatherings are pure selfishness.Report
I’m waiting for bars and restaurants to also claim that eating is an essential activity (at least as essential as praying) and that closure of eateries will have a devastating effect on the community.Report
There was a case in Texas — I didn’t follow it closely and don’t know how it came out — in which a concert venue sued because churches were allowed to have crowds and he wasn’t, even with similar (if laughably insufficient) safety regulations.Report
I see this as just another data point in the collapse of authority of our institutions.
There was a time when church leaders were viewed as “pillars of the community”. They were viewed as figures of gravitas and wisdom and their words and opinions on the matters of the day were given respect.
I can’t do that any more. And it isn’t any one specific thing that has caused this, it seems from my personal vantage point, that it is just a long series of cascading failures one after another.
But with regard to this specific instance, the actions of the church leaders seem to exemplify the very self centered amoral hedonism they warn against.
They don’t really think that mass gatherings will be safe. They know that they will become spreading events, and people will become sick and die as a result.
They just don’t care. Their needs, their desires take precedence over the needs of others.Report
What about my personal example above? Every other pew, scrubbings between services, et cetera? Collection buckets by the door? We’ve had zero cases, and I know that because we’re all on a call list. Your mental image of a service might not be safe, but that’s no reason to condemn everyone.Report
This reminds me of the arguments made by bathhouses during the 80’s AIDS epidemic.
“But what about Ted, who has had multiple anonymous partners but wears condoms, and has never contracted HIV?”
Good for Ted. He’s rolled boxcars a dozen times in a row.
I guess the bigger point is, isn’t abstinence and self discipline and sacrifice something churches could teach our secular society?Report
The main thing is to infect as many people as possible before the vaccines come online. It’s not as if Americans could learn patience or concern for others.Report
It would be interesting to find out how much a role these church’s economic fortunes played in their objections. Our church has a vigorous electronic giving program so contributions have hardly fallen off, despite having no in person worship until the fall, and then closing again when case numbers started to ramp up again.Report
And we keep having politicians doing shit like this:
Is it important or not?Report
I don’t know, I can care about these things a little, but that’s about it. He did his job and urged everyone, but travel isn’t illegal. It’s up to each of us to make prudential decisions. And it wasn’t like he made out with an Ebola patient; it’s an airplane. If he gets tested and self-isolates, he’s unlikely to expose anyone as part of his official duties.Report
The problem with collective action is that it requires collective action.
If you have free riders, that’s bad. If your free riders are your leaders, that’s *VERY* bad.
But I say that as someone who is part of a family that has cancelled Family Thanksgiving this year.Report
The free-rider problem is a flawed analogy. It doesn’t cost me any immunity if someone else I guess you could complain that *if* he gets sick he’s using hospital space, but if he doesn’t get sick because of this particular decision, there’s no cost to the system. I’m not saying you’re unconditionally wrong, just that you’re not quite there.Report
One of the local mayors asked his council to pass a law barring admission to their hospitals of people with Covid from the next county over. That next county has steadfastly refused to enforce most of the state-level restrictions. (As I recall, said county was also the leader of the “51st State” movement in Colorado several years back.)Report
It doesn’t affect many people directly: no one if he doesn’t get infected, himself and his COVID tree if he does. I don’t know if there are people who would have taken precautions , but now won’t because of this revelation (as opposed to people who never would have and use him as an excuse.) There can’t be many.
So, no, not important, certainly compared to what SCOTUS did.Report
Oh, so it’s not a moral issue, really, it’s more of a pragmatic one?
Good to keep in mind, I guess, the next time I have extraordinary circumstances.Report
You wouldn’t have allowed yourself a decision under extraordinary circumstances before? How strongly devoted to the mayor of Denver are you?Report
We all have “extraordinary circumstances,” or so we would like to think. The proof will ultimately be in the pudding.Report
Think about it in light of Kristin’s post. There are people who are being asked to give a lot and without much help coming from the politicians asking it.* The least those politicians can do is some leading by example, especially on the easy stuff.
*Why that post steers from the obvious critique of the government into the usual vapid culture war stuff is a mystery to me but the pinch it describes is real.Report
I have cancelled vacations to visit people who have since died. Regular social events (like gaming groups) have evaporated. I have done my part in this.
And I keep noticing not only that others are not, but leaders are not.
And people make excuses for the leaders.Report
I’m not making excuses for the leaders; I’m saying that I don’t need every one of them to set an example in order to do the right thing.Report
I don’t need them to do so either.
But if I saw the quarantine as a moral imperative, I’d sure as heck notice when people only opposed half of the raucous block parties that were happening and then waxing philosophical about the personal acceptance of risk for the other half.
If I were doing my part to help, I’d notice the people who were actively pooping in the punchbowl.
Rather than explain how, seriously, Everybody Poops (they wrote a book about it).Report
I would think, however, that you’d hold the leaders who are explicitly calling for citizens to give up travel or family gatherings to honor their own requests.
In both the Denver mayor and California governor cases we get, “Yeah, but this is different.”Report
It erodes trust in government, so yes, it is important.
What SCOTUS did was basically say “Don’t be so freaking obvious about it.”Report
It erodes trust in government, so yes, it is important.
So, from a libertarian point of view, it’s a good thing?Report
I only said it’s important, I didn’t say if it was good or bad.Report
I’m going to abide by Will’s rule about comments going on relevant posts, but there’s stuff going on that going to affect trust in the legitimacy of government way more than this is.Report
Agreed.Report
Just when I thought I could feel nothing but disdain and disappointment with institutional leaders along comes this knucklehead and forces me to reconsider:
With some exceptions, governments have made great efforts to put the well-being of their people first, acting decisively to protect health and to save lives. The exceptions have been some governments that shrugged off the painful evidence of mounting deaths, with inevitable, grievous consequences. But most governments acted responsibly, imposing strict measures to contain the outbreak.
Yet some groups protested, refusing to keep their distance, marching against travel restrictions — as if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom! Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate.
It is all too easy for some to take an idea — in this case, for example, personal freedom — and turn it into an ideology, creating a prism through which they judge everything.
Pope Francis, in the NYT
https://www.nytimes.com/2020/11/26/opinion/pope-francis-covid.htmlReport
I liked the deadpan: “Pope Francis is the head of the Catholic Church and Bishop of Rome.”Report
“Austere religious scholar”.Report
“…Vicar of Jesus Christ, Successor of the Prince of the Apostles, Supreme Pontiff of the Universal Church, Primate of Italy, Archbishop and Metropolitan of the Roman Province, Sovereign of the Vatican City State, Servant of the servants of God, First of his name.”Report
I don’t much care for his presumption of bad motives on the part of his opponents.Report
What else is he supposed to say? “Love thy neighbor, unless it’s too inconvenient.”Report
What’s he supposed to say about his impression that other people have bad intentions? How about, nothing. I personally don’t assume that every government action has been ideal, and I don’t assume that every protest against them has been immoral. I don’t think I’ve said anything about how other countries have handled the crisis because I don’t know their systems, and I wouldn’t want to guess if they’re implementing the best ideas in the best way. There’s simply no need to personalize it. I’m also not going to take a slogan scrawled on a piece of cardboard as a complete explanation of a person’s philosophy. I respect the office of the papacy, and I don’t think the Holy Father understands how he sometimes comes off, but he often seems to personalize disagreements in a very Facebook way.Report
Peoples’ motives, and the state of their souls, seem to be right in a Pope’s wheelhouse — at least if you believe in Popes. Binding and loosing on earth and in heaven and all that.
As for me, I go along with the backwoods preacher who was asked if he believed in infant baptism. “Believe in it?” he said, “Hell, I’ve seen it done.”Report