By / Dec 4

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.

By / Apr 2

As the coronavirus pandemic rages across the world, Christians are on the front lines offering medical care to those in need. Jeff Pickering welcomes Edward Graham of Samaritan's Purse to the show talk about how their worldwide aid organization is mobilizing medical volunteers to join local hospitals and government authorities in Italy and New York City to respond to the pandemic.

This episode is sponsored by The Good Book Company, publisher of Where is God in a Coronavirus World? by John Lennox  

Guest Biography

Edward Graham is Assistant to the Vice President of Programs and Government Relations at Samaritan's Purse. He is the youngest son of Franklin and Jane Graham, and the grandson of Billy Graham. Edward graduated from the United States Military Academy where he went on to serve 16 years in the US Army. After multiple combat deployments within Special Operations and serving in various leadership positions, he felt called by the Lord to return home and serve in the ministry starting in the winter of 2018. Edward and Kristy have been married for 14 years, and have one daughter and three sons. They are raising their four children in the mountains of North Carolina.

Resources from the Conversation

By / Sep 11

On July 29, President Trump signed the Never Forget the Heroes Act into law. This bill fully funds and makes permanent the September 11th Victim Compensation Fund (VCF). This legislation was renamed the Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act. The September 11th fund was established by the Air Transportation Safety and System Stabilization Act in the wake of the 2001 terrorist attacks in order to compensate the men and women who experienced physical harm or a personal representative of those who died in the attacks or debris removal efforts following the tragedy. The VCF was reactivated by President Obama in 2011 and reauthorized by Congress in 2015.   

Before the president signed this bill into law, the former VCF had been appropriated $7.375 billion, but there were insufficient funds to pay out claims. Federal law prohibited the VCF from expending funds beyond the appropriated amount. Thus, awards from VCF were forced to be reduced unless Congress took action. In February of this year, according to Rep. Carolyn Maloney (D–N.Y.), the VCF Special Master announced that, “due to a funding shortfall, injured and ill 9/11 responders and survivors will receive cuts to the awards that they were expecting of 50% for pending claims and 70% for future claims.” Speaker Nancy Pelosi had previously pledged to pass the bill in the House, and Senate Majority Leader Mitch McConnell (R–Ky.) told first responders in June that the upper chamber was working to renew the VCF by August. Now that the bill has become law, it extends and fully funds the VCF for victims and their families. Claims can now be filed through 2090 and will be paid out through 2092. The bill also modifies the VCF in the following ways: 

  1. to allow claims to be filed until October 2090, 
  2. to require VCF policies and procedures to be reassessed at least once every five years (currently, at least once annually), 
  3. to require claimants to be paid for the amount by which a claim was reduced on the basis of insufficient funding, 
  4. to remove the cap on noneconomic damages in certain circumstances, and 
  5. to periodically adjust the annual limit on economic loss compensation for inflation.[1]

Prior to signing the bill, President Trump offered the following remarks to an audience in the Rose Garden:

“Our nation owes each of you a profound debt that no words or deeds will ever repay. But we can and we will keep our nation's promise to you. In a few moments I will sign the 9/11 Victims Compensation Fund. This law makes permanent the financial support for families who lost precious loved ones as a result of September 11th attacks. It also provides pensions for those who are suffering from cancer and other illnesses stemming from the toxic debris they were exposed to in the aftermath of the attacks. Many of those affected were firefighters, police officers, and other first responders . . .” 

Not only should leaders of this nation seek to look after those that risked their lives that September morning, but we, as image-bearers of God, should minister to those in need.

We continue to mourn the thousands of lives lost on this generation’s day of infamy. Not only should leaders of this nation seek to look after those that risked their lives that September morning, but we, as image-bearers of God, should minister to those in need. Neighborly love is among the most important commands found in Scripture. Jesus told us that loving God and loving your neighbor is the ethic behind the entirety of God’s law (Matt. 22:34–40). 

Now, the U.S. government has ensured that the surviving victims and their families impacted by the September 11 attacks are provided care for decades. Ultimately, Christians are not only to provide for the physical needs of those in need, but are called to also point them to the Provider of our ultimate need. Thinking back on where we all were that September morning brings a variety of emotions to the surface, and perhaps more questions than answers. Tim Keller, former pastor of Redeemer Presbyterian Church in New York City, gave these remarks while preaching at the National Cathedral to 9/11 victims’ families and national dignitaries on September 10, 2006:

But it is on the Cross that we see the ultimate wonder. On the cross we sufferers finally see, to our shock that God now knows too what it is to lose a loved one in an unjust attack. And so you see what this means? John Stott puts it this way. John Stott wrote: “I could never myself believe in God if it were not for the Cross. In the real world of pain, how could one worship a God who was immune to it?” Do you see what this means? Yes, we don’t know the reason God allows evil and suffering to continue, but we know what the reason isn’t, what it can’t be. It can’t be that he doesn’t love us! It can’t be that he doesn’t care. God so loved us and hates suffering that he was willing to come down and get involved in it. And therefore the Cross is an incredibly empowering hint. Ok, it’s only a hint, but if you grasp it, it can transform you. It can give you strength.

ERLC policy intern Kiah Crider contributed to this article. 


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By / Feb 2

Christianity is a faith of promise.  Christians possess the promise of hope, the promise of grace, and the promise of the Father’s steadfast love.  But, it has been clear from the outset, from the very beginning of our religious experience, that those who follow Christ are not promised space in this world.  As Jesus said to those who would follow Him, “foxes have dens, birds have their nests, but the Son of Man has no where to lay His head.”  Fortunately, the vitality and resilience of our faith does not rest in finding quarter in this world.  The same, however, cannot be said about the vitality and resilience of cities that would deny religious organizations freedom to assemble.  For this reason, it is disheartening to read this past week of Mayor Bill de Blasio’s about-face decision to oppose local churches from renting space in New York City’s public schools.

The issue of religious groups, specifically Christian churches, renting space in New York City public schools has been in contentious flux for the past 20 years.  Administrations come and go, decisions are handed down, appeals granted, and yet the issue remains unresolved.  In April 2014, the newly elected Mayor de Blasio signaled that he supported the right of religious groups to rent space from public schools.  He based his statement on the two sound observations; one, that churches had to undergo the same application process as any organization; and two, that churches “play a very, very important role in terms of providing social services and other important community services. And I think they deserve that right.” His stated position, one that aided in his election in 2013, appears to have shifted.

Cities are complex organisms.  Their problems are complex; as are their solutions.  Cities live, breath – they get sick, and they heal.  It should be no surprise that vital and healthy cities possess certain common characteristics.  For instance, 49 out of the 50 largest school districts in the nation allow for religious organizations to lease from public schools, the one city absent from the list is New York City. Jane Jacobs, the late urban sociologist, NYC resident, and author stated that “dull inert cities contain the seeds of their own destruction… But lively, diverse, intense cities contain the seeds of their own regeneration.”  There will always be a tension within the conflicting visions over the use of space and the constitutionality of religious expression in diverse contexts like New York City.  It is that tension of diversity and proximity that keeps this city lively and vital.  The temptation will always be to remove the tension through regulation and restricting freedom.  But the emotional and spiritual health of a community is served best when its members are allowed to express themselves through assembly; a fact our founding fathers knew well.

Circa 2014 Mayor de Blasio seemed to acknowledge the value of cultural and community service that accompany healthy religious expression within his city.  With his current position, he appears to be abandoning both reason and himself.  As a pastor and church planter in NYC, I find the idea of denying tax-paying citizens the opportunity to assemble in taxpayer funded facilities culturally unwise, politically reckless, and spiritually disheartening.

It will take more than governmental programs and after-school initiatives to cure what ails this city.  The seeds of this city’s regeneration are found in the aggregate of small works and humble efforts that take place when communities of faith are granted the freedom to carry out their mission.  Politicians who fail to grasp this, underestimate the untapped power of gospel to transform lives and change communities, and they do so at their peril.  Foxes have dens, and birds have nests, but if he continues on this short-sighted path, it remains to be seen if Mayor Deblasio will rest his head in Gracie Mansion for a second term.