Recent Surpreme Court Decision Concerning Churches

[D. Engebretson]

Knowing the diversity of our forum, I know that this topic will probably be as divisive as it was on the court and in our country.  In a 5-4 vote late Wednesday, the Court voted in favor of requests by the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish congregations for an injunction to block the restrictions from being enforced that limit numbers gathering indoors. As one might predict it was quickly noted that Justice Amy Coney Barrett cast a deciding vote in favor of the religious groups. Conservative Chief Justice John Roberts dissented along with the court's three liberal justices, so it wasn't a unanimous vote along 'conservative' lines.

As noted in U.S. News and World Reports:
The case stemmed from an Oct. 6 decision by Cuomo, a Democrat, to shut down non-essential businesses in targeted areas where infections have spiked, including some neighborhoods in Brooklyn.

New York has categorized areas where coronavirus infections are increasing in severity as yellow, orange or red. Under Cuomo's restrictions, houses of worship in red zones could remain open at 25% capacity up to a maximum of 10 people.

In a call with reporters on Thursday, Cuomo said the high court's ruling would have no impact on the state's virus control efforts because the red zone status for the area in question had expired last week.

"It's irrelevant from any practical impact because the zone that they were talking about has already been moot," the governor said. "I think this was really just an opportunity for the court to express its philosophy and politics."

He also pointed out that the decision, which now goes to the 2nd U.S. Circuit Court of Appeals, is not final and did not appear to affect New York state's rules for mass gatherings.

The houses of worship argued the limits imposed by the state violated religious freedoms protected by the U.S. Constitution’s First Amendment, and that their facilities were singled out for more stringent restrictions than essential businesses, such as food stores.

The Orthodox congregations Agudath Israel of Kew Garden Hills and Agudath Israel of Madison, as well as nationwide Orthodox Jewish group Agudath Israel of America, requested the injunction.

A federal judge in Brooklyn rejected separate requests made by the religious groups on Oct. 9. The New York City-based 2nd Circuit declined emergency requests filed by both sets of challengers on Nov. 9.

In two previous cases this year, the court, in 5-4 votes, turned away similar requests by churches in Nevada and California. Those votes occurred before the death of Justice Ruth Bader Ginsburg, and saw her and the other three liberal members of the court joined by Roberts in the majority.

https://www.usnews.com/news/top-news/articles/2020-11-26/us-supreme-court-backs-religious-groups-over-new-york-virus-curbs

This decision will be noted especially as a bellwether of how the court will now consistently lean right, according to those who felt RBG would have held the more liberal direction if she had remained alive.

This also brings up the question of how the state will classify churches and houses of worship.  In the pandemic the word "essential" has become a key issue.  It has been pointed out how churches in some states received more stringent restrictions than even bars. Now, I suspect, there will be a cry that the emphasis will turn the opposite direction, and the court will favor religion, and that will be seen as a violation of the Establishment Clause.  I may be wrong, but that is my prediction.  I think, that if the run-off elections in Georgia favor the Democrats and the Senate tips their way, we will see a return to discussions about enlarging or "packing" the Supreme Court to either reestablish a 'balance' or guarantee its favoring of liberal causes.   

[James S. Rustad]

The mootness portion of Roman Catholic Diocese of Brooklyn v. Cuomo is especially interesting.  The court decided that the case was not moot because the restrictions could be reimposed at anytime.

Earlier, in New York State Rifle & Pistol Association Inc. v. City of New York, the court decided the case was moot because the city had amended the law and the state had amended its laws in such a way as to prevent the city from reimposing the objectionable restrictions in its law.

So, what is the difference?  Is it simply that in one case a higher level of government prohibited the lower level from reimposing a restriction while nothing similar was present in the second case?  Or is it reflective of the change in makeup of the court?  I don't think we'll know for a few years.

Once past the mootness issue, how should church services be treated?  Which businesses or other events should they be compared to when determining the allowed level of regulation?  From the order:

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026. The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

[Randy Bosch]

The mootness portion of Roman Catholic Diocese of Brooklyn v. Cuomo is especially interesting.  The court decided that the case was not moot because the restrictions could be reimposed at anytime.

Earlier, in New York State Rifle & Pistol Association Inc. v. City of New York, the court decided the case was moot because the city had amended the law and the state had amended its laws in such a way as to prevent the city from reimposing the objectionable restrictions in its law.

So, what is the difference?  Is it simply that in one case a higher level of government prohibited the lower level from reimposing a restriction while nothing similar was present in the second case?  Or is it reflective of the change in makeup of the court?  I don't think we'll know for a few years.

Once past the mootness issue, how should church services be treated?  Which businesses or other events should they be compared to when determining the allowed level of regulation?  From the order:

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026. The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

I haven't read the State's "Guidance" categorizing "essential" businesses to identify the definitions.
However, perhaps the issue is less that of religious gatherings than it is the manner in which "guidelines" are promulgated, the basis for stating what is "essential" or note, and how occupant levels can differ - and how they relate to the actual potential for spread of viruses.

Just a hypothesis, that there is a high level of imprecise and arbitrary thought and action, perhaps equal to or exceeding cultural/political biases of those who were tasked with developing the "guidance".

Maybe someone will be inspired/bored enough to study it and parse out the yellow flashing lights.

[David Garner]

I don’t think any honest person could characterize this decision as favoring religion, so those who choose to characterize it as such may be summarily dismissed. If anything, it is simply an instruction from the Court that secular convenience and religious liberty interests be fed from the same spoon.

[Charles Austin]

And just because churches are allowed to have gatherings of people greater than what is normally considered safe, doesn’t mean that it is always responsible for us to actually do that.

[JEdwards]

I read all the opinions. While the Justices engaged in some sharp exchanges, I thought they all reflected careful reasoning and good-faith attempts to reconcile important values related to religious freedom, public health, and political accountability. Roberts noted that it can be difficult to select an appropriate secular comparator when deciding whether religious organizations are being treated equally, arguing that calls like this should be made by politically accountable officials. Gorsuch pointed out some really extreme disparities in the treatment of religious and secular entities. The per curiam opinion referenced hostile public comments made by Governor Cuomo regarding Orthodox Jewish communities, while Sotomayor pointed out, fairly enough, that the Court did not consider President Trump’s public comments about a “Muslim ban” to be relevant in considering whether his executive order on immigration violated the First Amendment.

I think the Court got it right in the end. I wish the other two branches of our government showed comparable rigor in their debating and policy-making.

Peace,
Jon

[D. Engebretson]

What is considered "normally safe" has differed since the pandemic began, even from medical and community health experts.  When one establishes percentages and numerical limits it seems, at times, to be somewhat arbitrary, such as allowing bars and restaurants to be open, but closing them at 10 p.m.  The majority of churches and synagogues, I am convinced, have been abiding by basic CDC guidelines of safe distancing and mask wearing, providing hand-sanitizer and other protocols.  Churches, by and far, have been quite responsible. 

[MaddogLutheran]

And just because churches are allowed to have gatherings of people greater than what is normally considered safe, doesn’t mean that it is always responsible for us to actually do that.

Except that's not what was being allowed/ordered in New York.  As I understand it, New York was limiting religious gatherings to a maximum head count, not a percentage of occupancy like other enterprises.  That was the point of the lawsuit and Gorsuch's opinion.  They were not being given preferential treatment.  Quite the opposite.  And that runs afoul of their First Amendment protections.  Certainly if everything is shut down, then they no reason to complain.  The distinctions which the governor decreed may be justifiable if done by a legislature, I'm not sure about that yet.  But for this case, Gorsuch seems to be saying it's an arbitrary exercise of executive discretion which violates the First Amendment.

That lower courts, or the chief justice, didn't come to this conclusion is not because it's not true, but procedural.  That's how I take the chiefs dissent, not on the merits.  Contrary to the bile he's once again getting from the right.

In Pennsylvania, churches are under the same restrictions as any public indoor gathering:  a percentage of capacity.  (When we are not "red" and all public gatherings are limited to a minimal head count not percentage.)  I see nothing wrong with that, because it applies equally to any large gathering.  Nothing special because we are a church.  My congregation has required masks indoors, irrespective of any state mandate, when we finally resumed worship in the fall, outdoors initially and subsequently when moved inside in November--it wasn't necessarily mandated for a while.  Indoors we are not singing corporately.  YMMV

[MaddogLutheran]

The per curiam opinion referenced hostile public comments made by Governor Cuomo regarding Orthodox Jewish communities, while Sotomayor pointed out, fairly enough, that the Court did not consider President Trump’s public comments about a “Muslim ban” to be relevant in considering whether his executive order on immigration violated the First Amendment.

The problem with Sotomayor's reference to Trump's public statements on the so-called "Muslim travel ban" is that the policy, as instituted, is not a Muslim travel ban.  Aside from that inconvenient fact, aliens do not posses First Amendment rights, and the long history of immigration regulation specifically allows for the such selectivity.  Whereas Cuomo and DeBaslio's enforcement really does follow their public utterances, against people who do posses First Amendment rights.  But the wise Latina has had a long-standing issue with the truth and the law.

That being said, I don't agree with the behavior of Orthodox Jews I've seen flouting the rules that do apply to all of us equally.  There may be justification for concentrating enforcement against them, because they don't seem interested in following the less stringent limitations the Archdiocese of New York is willing to accept.

[Randy Bosch]

That being said, I don't agree with the behavior of Orthodox Jews I've seen flouting the rules that do apply to all of us equally.  There may be justification for concentrating enforcement against them, because they don't seem interested in following the less stringent limitations the Archdiocese of New York is willing to accept.

A caveat.  Because an individual or group is willing to accept limitations on their rights does not mean that the limitations are in compliance with existing law or with the Constitution.  Perhaps that is part of the Court's referral back to the lower court?

[Charles Austin]

I suspect that the court may indeed allow churches all kinds of exceptions from the “gathering“ rules.
My point is that even though we might be allowed to have large gatherings, that does that mean it is right to have them. Especially if it means we could be doing great damage to our neighbors.

[Jeremy_Loesch]

And congregations will continue to use sound judgment in determining how they conduct themselves according to the guidelines of the various places they find themselves.

Jeremy
 

[Julio]

Except that's not what was being allowed/ordered in New York.  As I understand it, New York was limiting religious gatherings to a maximum head count, not a percentage of occupancy like other enterprises.  That was the point of the lawsuit and Gorsuch's opinion.  They were not being given preferential treatment.  Quite the opposite.  And that runs afoul of their First Amendment protections.  Certainly if everything is shut down, then they no reason to complain.  The distinctions which the governor decreed may be justifiable if done by a legislature, I'm not sure about that yet.  But for this case, Gorsuch seems to be saying it's an arbitrary exercise of executive discretion which violates the First Amendment.

One wonders why a maximum head count seems to be far more commonly applied to religious gatherings. In Nevada casinos are by percentage of capacity ... a report ... probably from California indicates that strip clubs are to a percentage of capacity .. yet churches gatherings are limited to a flat specific number ... totally disregarding sanctuary capacity. 

A limit of 50 in the country sanctuary I once worshipped in way have been proper ... or a bit high ... a limit of 50 in the current sanctuary I am privileged to worship would be a complete travesty of justice as capacity is better than 500. 

Perhaps the antagonistic attitude towards religion by some decision makers is God’s righteous chastisement on Christians for failing to be the salt and leaven in the world today that our Lord wishes us to be.

[D. Engebretson]

Governor Cuomo, predictably opposed to the Supreme Court's recent decision, not only labeled it "irrelevant" (given the change in the zones under lockdown), but made this additional statement regarding the implication of the decision:
“They wanted to make a statement that it's a different court. That's the statement they're making, I understand that. And that’s to be expected," Cuomo said during a Thanksgiving Day call, alluding to the impact of the recent addition of Justice Amy Coney Barrett on the bench without calling her by name.

“We know who we appointed to the court. We know their ideology. It’s irrelevant from a practical impact because the zone that they were talking about has already been moved. It expired last week. I think this was really just an opportunity for the court to express its philosophy and politics,” he said.

https://test.christianpost.com/news/ny-gov-andrew-cuomo-slams-supreme-court-ruling-on-churches.html

Unfortunately this expresses, again, the highly partisan atmosphere in which politics now exists.  Any decision not respected by those identified as more progressive or liberal will now be automatically labeled not as a reasoned judicial decision, but as a ideological statement.  Of course, this is Cuomo speaking for himself, but I suspect others concur with his thinking.  Again, if the runoff Senate elections in Georgia favor Democrats, I predict that Supreme Court realignment to be one of the earliest projects undertaken by the new majority to control all branches in DC.

[Charles Austin]

I will listen to and discuss your criticism of Governor Cuomo, when you come equally hard down upon your guy, the president, who plays golf every day, holds massive rallies, (and is planning more),  completely ignores the virus rampaging through the country, and continually spouts lies concerning the election.
Until you deal with that, I don’t want to hear one word from you about Governor Cuomo, who at least responded to criticism and modified his plans.