The Supreme Court changes course on religious liberty and the pandemic

December 4, 2020

Late on the evening before Thanksgiving, the Supreme Court issued an unsigned, per curiam opinion in a case titled Roman Catholic Diocese of Brooklyn v. Cuomo on the tensions between religious liberty and pandemic governance. This case dealt with New York Gov. Andrew Cuomo’s “cluster initiative” orders that targeted religious communities, including the Roman Catholic Diocese of Brooklyn and a number of Jewish congregations in Brooklyn. Agudath Israel is represented by the Becket Fund for Religious Liberty in this case. The ERLC filed a brief in support of the Diocese of Brooklyn and Agudath Israel, and we are pleased the court took up the appeal in this case.

While the Supreme Court did not decide the underlying issues in the case, the opinion issued represents a shift in the judicial approach over the last nine months as the COVID-19 pandemic rages through the United States. In response to the pandemic, all Americans are subject to federal, state, and local emergency orders that give governors and local officials broad authority to take measures to slow the spread of COVID-19. It should be noted that in the vast majority of cases, these orders have been implemented in ways that respect fundamental constitutional rights. 

But there have been cases where the government overreached and infringed upon the fundamental religious liberty rights cherished by Americans. Over the last nine months, different courts have reached different conclusions, creating a patchwork of precedents that has resulted in the First Amendment meaning different things depending on where you live. The high court has had a number of opportunities to weigh in and clarify the underlying legal issues, but until last week, the justices declined to do so, even as some members of the court signaled a willingness to rule.

The high court weighs in

Gov. Cuomo’s “cluster initiative” orders limited attendance at worship services in areas of New York where large numbers of Orthodox Jews live. In “orange zones,” worship services were capped at 25, and so-called “red zones” restricted worship gatherings to 10 people. These restrictions were in place regardless of the size of the space or what other measures the house of worship may have in place such as social distancing, masking, and so on.

More to the point, when issuing the “cluster initiative” order, Gov. Cuomo made clear that his target in this case was the Orthodox Jewish community, as our brief argued:

The Governor left no doubt that targeting Orthodox Jews was his primary motivation. He described the problem he sought to address as “predominantly an ultra-orthodox cluster,” adding that he planned to “meet with members of the ultra-Orthodox community tomorrow,” to let them know that “we’ll close the [religious] institutions down” if “you do not agree to enforce the rules.” The Governor also highlighted pictures of Orthodox Jews as allegedly demonstrating “clear violations of social distancing,” wrongly claiming that the pictures were from “the recent past” (one of those photos was of a 2006 funeral). And the Cluster Initiative that the Governor issued matched his discriminatory rhetoric, as it was plainly gerrymandered to target the Orthodox Jewish community.

Both the federal district court and the Second Circuit ruled against the Diocese and Agudath Israel, and both parties appealed to the U.S. Supreme Court on their request for an emergency injunction. The court took up the case and ruled in favor of the religious communities. Enjoining Gov. Cuomo’s order, the court wrote:

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. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure. 

One of the key issues in this New York case—and many similar cases around the country—is the doctrine of mootness. Under this doctrine, courts can only decide cases that involve a live controversy. Throughout the pandemic, government officials have sometimes changed regulations or converted regulations into guidance on the eve of trial, thereby depriving houses of worship their day in court while protecting their own authority to reimpose the same regulations and start the litigation clock back from the start.

Here, on the actual eve of the court’s decision, Gov. Cuomo switched the zones in question from “red” to “yellow,” arguing that the case was then moot. Thankfully, the Supreme Court issued a ruling, holding that the religious groups “remain under a constant threat that the area in question will be reclassified as red or orange.” This precedent is good news for houses of worship seeking to challenge unequally burdensome government orders as the pandemic wears on.

What’s next?

Last week’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo breathes new life into both of these cases and revives hope among religious liberty advocates that the court will bring uniformity to the law of religious liberty during a pandemic. Further bolstering these hopes, the Court this week issued a brief ruling in a California case, Harvest Rock Church v. Newsom. Using an unusual procedure, the justices ordered the district court in California to revisit Harvest Rock Church’s claims in light of the Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo.

Two similar cases are coming before the justices for consideration, one in Kentucky and one in Nevada. This week, the court will hear a challenge to Kentucky Gov. Beshear’s order closing all private K-12 schools in the state. In that case, a group of schools represented by First Liberty Institute have challenged Gov. Beshear’s orders. The schools won in federal district court and have appealed a loss before the Sixth Circuit to the Supreme Court. While it is true that public K-12 schools were also ordered closed, the schools point to other businesses and spaces similar to classrooms that remain open or have been granted exemptions from the new order.

Later this month, the court will hear a challenge to Nevada Gov. Sisolak’s emergency orders, which placed a hard cap on the size of worship services—regardless of the size of the house of worship or what other measures the church takes—even as casinos are allowed to operate at 50% capacity. In this case, Calvary Chapel v. Sisolak, the church is represented by Alliance Defending Freedom

The ERLC will continue to file amicus briefs and be involved in these cases to defend the fundamental rights of religious liberty throughout the COVID-19 pandemic.

Travis Wussow

Travis Wussow serves as the Vice President for Public Policy and General Counsel. Travis led the ERLC’s first international office located in the Middle East prior to joining the Washington DC office. He received a B.B.A. in Finance from The University of Texas at Austin and a J.D. from The … Read More