Roman Catholic Diocese of Brooklyn v. Cuomo
592 U. S. ____ (2020) (2020)
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Rule of Law:
Government regulations that impose more severe restrictions on religious gatherings than on comparable secular activities are not neutral, must satisfy strict scrutiny, and will likely be found to violate the Free Exercise Clause of the First Amendment.
Facts:
- In response to the COVID-19 pandemic, New York Governor Andrew Cuomo issued Executive Order 202.68, which created geographically-based 'red' and 'orange' zones with heightened restrictions.
- In areas designated as 'red' zones, attendance at houses of worship was capped at a maximum of 10 people, regardless of the building's size.
- In areas designated as 'orange' zones, attendance at houses of worship was capped at a maximum of 25 people.
- In 'red' zones, businesses categorized by the state as 'essential'—including acupuncture facilities, garages, and chemical manufacturing plants—were permitted to admit as many people as they wished.
- In 'orange' zones, even non-essential businesses were allowed to set their own capacity limits, while houses of worship were subject to the 25-person cap.
- The Roman Catholic Diocese of Brooklyn and Agudath Israel of America, the applicants, had implemented comprehensive safety protocols such as mask-wearing and social distancing.
- The state did not present any evidence of COVID-19 outbreaks stemming from the applicants' religious services since they had reopened.
- Many of the affected churches and synagogues were large buildings capable of seating several hundred to over a thousand people while maintaining social distancing.
Procedural Posture:
- The Roman Catholic Diocese of Brooklyn and Agudath Israel of America filed lawsuits against Governor Cuomo in the U.S. District Court for the Eastern District of New York.
- The applicants sought a preliminary injunction to prevent the enforcement of the 10- and 25-person occupancy limits in red and orange zones.
- The District Court, a trial court, denied the motions for a preliminary injunction.
- The applicants appealed to the U.S. Court of Appeals for the Second Circuit, an intermediate appellate court, and moved for an injunction pending appeal.
- The Second Circuit denied the motion for an injunction pending appeal but granted expedited review.
- The applicants then filed an application for injunctive relief with the U.S. Supreme Court, the highest court.
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Issue:
Does New York's Executive Order 202.68, which imposes 10- and 25-person fixed occupancy limits on houses of worship in designated 'red' and 'orange' zones, violate the Free Exercise Clause of the First Amendment?
Opinions:
Majority - Per Curiam
Yes, the Executive Order's 10- and 25-person occupancy limits on houses of worship violate the Free Exercise Clause. The regulations are not neutral because they single out houses of worship for especially harsh treatment compared to many secular businesses. While businesses categorized as 'essential' can admit as many people as they wish, a church or synagogue in the same zone is capped at a low, fixed number. Because the restrictions are not 'neutral' and of 'general applicability,' they must satisfy strict scrutiny. Although stemming the spread of COVID-19 is a compelling state interest, these fixed-capacity regulations are not narrowly tailored. They are far more restrictive than necessary, especially given that less restrictive measures, such as tying maximum attendance to the size of the building, are available. The loss of First Amendment freedoms for even a minimal time constitutes irreparable injury.
Concurring - Gorsuch
Yes. The First Amendment prohibits government officials from treating religious exercises worse than comparable secular activities. The Governor's order allows businesses like liquor stores and bicycle repair shops to operate without numerical caps while shuttering churches and synagogues, which is precisely the kind of discrimination the First Amendment forbids. The Court's previous deference to executive orders during the pandemic's early stages has expired. The argument that the case is moot because the Governor recently changed the zone classifications is unpersuasive; the Governor could reinstate the unconstitutional restrictions at any time, and the Court should not force religious leaders to endure endless litigation cycles.
Concurring - Kavanaugh
Yes. New York's severe and inflexible numerical caps on religious services are discriminatory and trigger heightened scrutiny. Once a state creates a favored class of businesses that are exempt from strict limits, as New York did with 'essential' businesses, it must justify why houses of worship are excluded from that favored class. New York has failed to provide a sufficient justification. It is not enough for the state to point out that other secular activities, like movie theaters, are treated even more harshly; the proper comparison is to the favored secular businesses that are treated more leniently.
Dissenting - Roberts
No, an injunction should not be granted at this time. There is no need for the Court to issue an extraordinary injunction because the Governor has already revised the zone designations, and none of the applicants' houses of worship are currently subject to the challenged 10- or 25-person limits. While the fixed numerical limits seem unduly restrictive and may well violate the Free Exercise Clause, the immediate threat has been removed. If the Governor reinstates the restrictions, the applicants can promptly return to the Court for relief. It is a significant matter to override the determinations of public health officials in the midst of a pandemic when there is no pressing need to do so.
Dissenting - Breyer
No, an injunction should not be granted. There is no present need to issue an injunction as the applicants are no longer in red or orange zones and are not subject to the challenged restrictions. The constitutional question is far from clear, and courts must grant elected officials 'broad' discretion in areas fraught with medical and scientific uncertainties during a public health crisis. The State has countervailing arguments based on health and safety that must be balanced against the First Amendment claims, and the Court should not act hastily before the Court of Appeals has had a full opportunity to consider the matter.
Dissenting - Sotomayor
No, an injunction should not be granted. New York's regulations are constitutional because they treat houses of worship equally or more favorably than comparable secular gatherings, such as concerts and movie showings, where large groups congregate for extended periods. Activities treated more leniently, like shopping, are dissimilar because people do not congregate in close proximity for long durations. Justices should not second-guess the expert judgment of health officials about the environments where a contagious virus spreads most easily. New York's policy singles out religious institutions for preferential treatment compared to their secular counterparts (e.g., movie theaters), not for discriminatory treatment.
Analysis:
This per curiam opinion marked a significant shift from the Supreme Court's earlier, more deferential approach to state COVID-19 restrictions on religious services, as seen in cases like South Bay United Pentecostal Church v. Newsom. It signaled a renewed willingness to apply strict scrutiny to public health orders that are not 'neutral and generally applicable,' specifically targeting rules that treat religious activities less favorably than some secular ones. This decision establishes a precedent that makes it significantly more difficult for governments to impose fixed numerical capacity limits on worship services, requiring them to instead use less restrictive means, such as percentage-based caps, that do not disadvantage religion relative to comparable secular activities.
