Supreme Court relieves religious organizations from some covid-related restrictions
S E E D E D C O N T E N T
Supreme Court relieves religious organizations from some covid-related restrictions
The Supreme Court's new conservative majority late Wednesday night sided with religious organizations in New York that said they were illegally targeted by pandemic-related restrictions imposed by Gov. Andrew M. Cuomo to combat spiking coronavirus cases.
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The 5-to-4 order was the first show of solidified conservative strength on the court since the confirmation of Justice Amy Coney Barrett, whom President Trump chose to replace liberal Justice Ruth Bader Ginsburg following her death in September. The decision differed from the court's previous practice of deferring to local officials on pandemic-related restrictions, even in the area of constitutionally protected religious rights.
"Even in a pandemic, the Constitution cannot be put away and forgotten," said the unsigned opinion granting a stay of the state's orders. "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."
The limits were severe, at times capping worship services at only 10 people. But the state said they were necessary to deal with "hot spots" of virus outbreaks.
The Supreme Court's order was issued just before midnight, and five justices wrote separately.
Chief Justice John G. Roberts Jr., who had been the court's pivotal member in previous emergency applications seeking relief from virus-related restrictions, dissented along with the court's three liberal members.
He noted that while the court was considering the petitions, Cuomo, a Democrat, had eased the restrictions, and thus there was no need for the court to intervene now.
"It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic," Roberts wrote for himself.
Justice Sonia Sotomayor said the court was intervening where it should not.
"The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives," she wrote, adding, "Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily."
[Supreme Court, in rare late-night ruling, says California may enforce certain restrictions on religious gatherings]
The issue has divided the court before.
In past cases, Roberts agreed with conservative justices who turned down petitions from prisoners seeking intervention, allowing local corrections officials to set the rules for dealing with the virus.
But Roberts sided with the liberals, when Ginsburg was alive, to leave in place restrictions in California and Nevada that imposed strict limits on in-person services at houses of worship.
In the California case, Roberts wrote that fast-changing conditions meant the courts should defer to local officials charged with protecting the public. They "should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people," he wrote.
But the court's more conservative justices said it violated the Constitution for local officials to impose more drastic restrictions on houses of worship than on businesses considered essential.
[Justice Alito says pandemic has resulted in 'unimaginable' restrictions on individual liberty]
In a speech to the conservative Federalist Society earlier this month, Justice Samuel A. Alito Jr. amplified his objections, saying the pandemic "has resulted in previously unimaginable restrictions on individual liberty."
He continued: "This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right."
Justice Neil M. Gorsuch, another Trump appointee to the court, took pointed aim at Roberts's opinion in the California case and declared that it should no longer guide lower courts when weighing pandemic-related restrictions on religious services.
"Courts must resume applying the Free Exercise Clause," Gorsuch wrote. "Today, a majority of the Court makes this plain."
He said the order should dispel "misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long."
[Neil Gorsuch? The surprise behind the Supreme Court's surprising LGBTQ decision.]
The Roman Catholic Diocese of Brooklyn and Jewish organizations led by Agudath Israel challenged Cuomo's system of imposing drastic restrictions on certain neighborhoods when coronavirus cases spike.
Under Cuomo's plan, in areas designated "red zones," where the virus risk is highest, worship services are capped at 10 people. At the next level, "orange zones," there is an attendance cap of 25. The size of the facility does not factor into the capacity limit.
The diocese said in its petition that the plan subjects "houses of worship alone" to "onerous fixed-capacity caps while permitting a host of secular businesses to remain open in 'red' and 'orange' zones without any restrictions whatsoever."
"The result is that Target and Staples can host hundreds of shoppers at a time, and brokers can spend 40 hours per week working and hosting customers in poorly ventilated office buildings, but Catholics cannot attend a 45-minute Mass," the petition said.
Cuomo said in announcing the restrictions that failure by some Orthodox Jewish groups to abide by lesser restrictions turned the surrounding neighborhoods into "hot spots," where temporary drastic measures were needed.
Agudath Israel, which describes itself as an "umbrella organization for Orthodox Jewry," said Cuomo's words show why the restrictions are unconstitutional.
"This case is the first time in living memory where a state governor has drawn targets on a map over neighborhoods of a discrete religious minority" to allay "the majority's 'fears' that this minority was deepening a national crisis," the group said in its petition to the Supreme Court.
"This court should not permit such remarkable scapegoating of a religious minority to stand."
New York responded that the restrictions are temporary and changing based on conditions. When coronavirus cases spike, the restrictions are put in place, and then removed when conditions improve.
For instance, the state said the designations had been changed since the organizations filed petitions with the Supreme Court.
"At this time, there are no red or orange zones in Brooklyn or in Queens — or indeed anywhere in New York City — only yellow zones," the state said in its response. None of the churches or synagogues face the toughest restrictions.
And the restrictions are lessened for houses of worship in other zones. In the next level, "yellow zones," nonessential gatherings are limited to 25 people, but houses of worship are restricted to 50 percent of capacity — more than what the diocese even requested.
Actually, the state argued, it has opted to treat religion more favorably.
"Rather than prohibit houses of worship located in red and orange zones from hosting gatherings altogether, [Cuomo's order] allows such gatherings to occur, subject to limits on their size," the brief said.
"The order thus accords preferential treatment to religious gatherings in houses of worship, as compared with secular activities that present a similar or greater degree of risk of COVID-19 spread."
Lower courts sided with the state, denying the emergency relief sought by the religious groups.
The cases are Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel v. Cuomo.
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Nice to see the Constitution being upheld.
pffft, I want religious wackos to willfully risk being contaminated once a week during the peak of the pandemic.
Well, of course you do!
No surprise there.
But no problem with "mostly peaceful protesters" aka rioters assembling and violating mask and distancing laws?
What a surprise.
Can't you just feel the love and tolerance oozing from post #1.1?
I don't participate in either. why would you infer that I would? I can only recall a specific segment of our culture routinely defying any type of mask policies.
The only surprise is that it was 5-4. Should have been 9-0.
Can't discriminate against those exercising actual constitutional rights.
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Churches should be subject to the same criteria as other enclosed public areas where people are talking loudly and/or singing. No more and no less.
Would you feel the same if the place of gathering or worship is a mosque?
Freedom of religion shall not be infringed. It's that old separation of church and state thingy
Yes. In fact, all you had to do was read what I wrote and the answer would have been crystal clear.
Now, that right there isn't even rational. Fire codes limit capacity of buildings based on size. Imagine if the fire department went around saying no one could have more than 10 people in a building - like a restaurant or a theater - no matter how big it was. That would universally be regarded as insane. But it's a fine for a church???
I also find it interesting that the main defense offered seems to be that of mootness. That is, because the churches were no longer subject to the specific restrictions, the case should be dismissed as moot.
First of all, I find it telling that mootness is offered instead of a vigorous defense of the legitimacy and rationality of the regulations, which as I just pointed out, was lacking. Clearly, even the government knew their regulation was unreasonable.
The measure of mootness is one that judges can reasonably disagree on, but one of the considerations in a case where the issue no longer exists, is whether or not it is likely to come up again. That is, is the issue repeatable? This was a big question in Roe v Wade, where the plaintiff was no longer pregnant and so no longer needed a ruling on the legality of abortion. The Court at the time correctly observed that the plaintiff could become pregnant again, as could millions of other women, and she/they would be subjected to the same restrictions.
Here, even if the churches are not subject to the restrictions under scrutiny at the moment, there is no reason to think they might not be at some point in the near future. Covid related regulations change continually - not just in New York, but all over the country. The weather doesn't change as fast. So I find it interesting that both the government and dissenting justices chose to hide behind this feeble argument.
I agree that this is wrong. The criteria should include the size of the facility, the ability to maintain a proper social distance and the nature of the activity.
Singing and/or talking loudly produces more projectiles than talking (or silence). If the building forces people into order (e.g. with pews) then that needs to be considered to maintain a proper social distance.
The commonsense aspect here is that every public building should have a capacity limit (during the pandemic) that enables maintaining a proper social distance based on the activity conducted therein.
That's the whole problem with regulations that target houses of worship specifically. They inherently treat religious activity separate from other, less constitutionally protected, activity. That runs the risk of violating either the Free Exercise Clause (in the case of more restrictive regulations) or the Establishment Clause (in the case of more favorable regulations).
Do you not agree that houses of worship are a special category just like bars and restaurants are special categories?
Houses of worship were designed to support a close-knit community of people coming to worship. The activities typically involve plenty of human contact and proximity and, especially, involve loud speaking in unison, singing in unison and (in some of the more energetic churches) dancing.
A house of worship is very different from a grocery store and most other retail outlets. Bars and restaurants also are very different from these conventional stores. Why would it be wrong to have special rules for special categories of open-to-public buildings?
My take is that houses of worship need to take measures that ensure effective social distancing, etc. Simply applying a general limit to occupancy clearly is not even close to a proper solution. Logically, each house of worship would have to come up with its own procedures (given its architecture, floor plan and activities) to ensure a service can be safely conducted considering social distancing and the reduction of expelling particulate matter into the shared air space.
This would include, one would think, precautions such as closing alternate pews, checking temperatures at the door, special paths for entrance and exit, asking routine questions and to proactively encourage worshipers to engage in specific safe practices if they intent to enter the house of worship.
I think the special rules need to be determined by the buildings themselves. The state should set criteria on social distancing, wearing of masks, etc. It is then up to the individual building management to ensure their site is compliant with these precautions.
I'm not sure how to answer that. Do you mean that they're special in the same way that bars and restaurants or special? Or in some other way?
I don't think they're all that different - at least not to the level that they require unique regulating. Retail outlets have close human contact and loud speaking. Lots of places do. One of the things that creates a public sense of unfairness is the way different kinds of businesses, activities, and facilities are governed by different regulations.
So obviously we think of a choir. I'm not sure it makes much difference, though, that loud speaking or singing is done in unison, as with choral singing, or randomly and chaotically as in the kind of multiple simultaneous conversations common in malls, stores, restaurants, office buildings, courthouses, and so on.
Of course. I believe the plaintiffs in this case argued that they were taking such measures, and I don't believe that was in dispute. One of the frustrations that some of us have who want churches open is that some churches don't care to worry about masks and social distancing at all. On the contrary, they see it as a badge of independence and superior faith to not take such precautions. Those people are dicks, if you ask me (Sorry, if I am offending any members!).
I know of a couple big churches in SoCal that promised officials they would employ those precautions as a condition of remaining open, but they did not follow through. So, they're dicks and liars. Nice for a church.
However, the whole community should not be punished because some refuse to follow reasonable rules. One (or two) bad apple should not spoil the whole barrel.
Indeed. Many places are doing that. It's also happening at schools, in stores, and any place that hosts lots of people. Supermarket lines might be 6 feet apart now, and you might need a mask to enter, but it wasn't always that way. It's not any harder for churches to do these things. And when I go shopping, I spend about as much time in the building as I would in church.
I agree. The criteria should be clear in the goals it tries to set (6 feet apart, for example) and then people can figure out how best to do that.
I am saying that houses of worship, bars, restaurants, etc. are fundamentally different from standard retail stores but in different ways. In my post I basically identified four of many potential categories:
I explained why I see them as substantially different. Seems obvious to me but I am not going to belabor the point.
My point, taken as a whole, argues that houses of worship are quite different from other public places like retail stores so their precautions will necessarily be different. But I also note that it should be the individual buildings that determine how to abide by safety precautions. But you have read this and we agree so no need for me to go further:
Yes. State sets social distancing (for example) and the buildings all try to figure out the specific methods to achieve that requirement.
If they want to gather like sardines in a can, sing their hearts out, and get infected, it is no skin off of my astabula.
Thank you for not being upset over folks exercising their Constitutional rights.