On November 25, 2020, the Supreme Court of the United States issued an emergency opinion in the case of Roman Catholic Diocese of Brooklyn, New York, v. Andrew M. Cuomo, Governor of New York (Application No. 20A87) ostensibly to protect the freedom of religion. The 5 to 4 decision appealing denials of a stay from the Second Circuit Court of Appeals reversed the denial of an injunction to the religious denominations that objected to New York State’s limits on public gatherings during the current COVID-19 pandemic that had been imposed by a regulation of Governor Andrew Cuomo.
The case had been combined with a case by the Haredi Orthodox Jewish organization, Agudath Israel of America. Both religious denominations challenged the limits placed on the number of persons who may gather in churches or synagogues, which are not designated as ‘essential businesses’, for the purpose of combatting the increasing spread of COVID-19. The limits applied to different areas of New York City that were designated by colors: red for the worst-hit areas, orange for seriously hit areas, and yellow for areas that were starting to limit the spread of COVID-19. The number of persons who were allowed to be present at the same time at a gathering in a house of worship was limited to the lesser of 10 people or 25% of maximum capacity in a red zone; 25 people or 33% of maximum capacity in an orange zone; and 50% of maximum capacity in a yellow zone. Although the applicants’ locations had been originally designated as red and orange zones, by the time the case reached the Supreme Court both locations were deemed yellow zones, which were subject to a level of restrictions that were not challenged.
As is its usual practice, the Court considered the application for injunctive relief with a three-part test. First, it determined whether the applicant is likely to succeed on the merits. Second, it determined if irreparable harm would occur if the injunction was not granted. And third, it determined whether granting an injunction would harm the public.
The Court found that the applicants were likely to succeed on the merits because “[t]he applicants have made a strong showing that the challenged restrictions violate ‘the minimum requirement of neutrality’ to religion” by targeting particular religious communities. The Court adopted the understanding of dissenting Judge Park on the District Court’s (three-judge) panel below. Judge Park had found the exercise of religion to be entitled to a very high degree of protection. He defined both the right and the means by which it may be protected very broadly. By defining the free exercise clause broadly the majority of the Supreme Court concluded that a strict scrutiny analysis applies to the interference with the right to freedom of religion that is protected by the First Amendment of the United States Constitution. The majority made this determination while at the same acknowledging that “the spread of COVID–19 is unquestionably a compelling interest” that can justify government action. According to the Court, the reason the compelling interest did not justify this particular government action was that it was overly broad.
The Court then found that New York’s restrictions on the number of people who may attend religious services were not narrowly tailored to the public health interest. The Court distinguished two earlier cases in which it had allowed limits on religious gatherings to stay in place—Calvary Chapel Dayton Valley v. Sisolak and South Bay United Pentecostal Church v. Newsom. The distinctions were based on the fact that fewer people were presumed to have been denied access to religious services in New York. Curiously, the Court did not consider whether the differences were required by the public health circumstances in New York. Equally curious, the Court found the restrictions unnecessary because they had actually protected the health of New Yorkers. Because the number of COVID-19 cases had been brought under control, the Court reasoned, the restrictions that had accomplished this public health goal and thus could be dispensed with. Assumedly, had more New Yorkers fallen ill at the Applicants’ places of worship, the Court would have found the ‘failed restrictions’, to have satisfied their strict scrutiny test. This logic flies in the face of the evidence that churches are a major source of the spread of the virus. The concern about religious services being ‘super spreader events’ was not addressed by the Court’s opinion. It was not without irony that the newest member of the Court, Justice Amy Coney Barrett, had been part of a ‘super-spreader event’ just a few weeks earlier at the White House when her nomination to the Court was announced by President Donald Trump, who himself contracted the virus.
To find irreparable harm the Court again assumed a broad understanding of religious freedom in the Constitution citing a precedent not within the context of a pandemic to hold that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns. The cited case had involved the First (the speech, not religion, clause) and Fourteenth Amendments (due process) applied to employment rights and itself had cited New York Times Co. v. United States, a case about journalistic freedom. Stretching these cases to cover the weighing of the competing interests of health and religious freedom during a pandemic with minimal elaboration seems to leave open a question about whether the Court views the exercise of religion as immune from exceptions for public health.
Finally, addressing the third prong of its injunctive relief analysis, the Court decided that granting injunctive relief would not harm the public. The Court admitted that its Justices “are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area …” but then appeared to contradict itself with the claim that “even in a pandemic, the Constitution cannot be put away and forgotten”. The Court never explained why or if the public health experts were wrong, but merely made them irrelevant by finding an overriding right to religious freedom.
Justices Gorsuch and Kavanaugh penned concurring opinions. In Justice Gorsuch’s view, the First Amendment’s protection of freedom of religion made virtually any restrictions impossible. It is thus hard to see how any restriction on the practice of religion would survive the broad right that Justice Gorsuch envisioned. Justice Gorsuch attacked South Bay Pentecostal Church v. Newsom, where the Court had denied an injunction based on similar facts. Justice Gorsuch argued that South Bay was decided without a majority opinion, but merely a concurrence from the Chief Justice. In addition, Gorsuch appears to object to Calvary Chapel Dayton Valley, because it gave too little precedence to the freedom of religion. Somewhat surprisingly, Justice Gorsuch also objected to the longstanding precedent of Jacobson v. Massachusetts, a case in which Massachusetts had convicted Mr. Jacobsen of violating a law that required everyone to be vaccinated during a smallpox pandemic. A major distinction for Justice Gorsuch appears to be that the due process protections of the Fourteenth Amendment deserve less protection. It would indeed be curiously precarious for judicial consistency if the Court were to partake in a ranking of its preferences of constitutional rights.
In Justice Kavanaugh’s view “the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake”. Justice Kavanaugh thus focuses on the severity of New York’s restrictions. He seems satisfied that the Court rather than New York State’s public health experts can determine what is appropriate. Citing Church of the Lukumi Babalu Aye, Inc. v. Hialeah and Employment Div., Dept. of Human Resources of Ore. v. Smith, Justice Kavanaugh claims that “[t]he State’s discrimination against religion raises a serious First Amendment issue and triggers heightened scrutiny”. As Justice Kavanaugh appears to understand it, once there is a decision to apply strict scrutiny the case is virtually decided. For this reason, his concurrence does little to strengthen the Court’s logic for deciding to apply strict scrutiny.
Chief Justice Roberts dissented on the narrow grounds that an injunction was not timely because the complaints of restrictions did not apply to any of the applicants. He focused on the fact that the restrictions have been removed from the applicants because they were no longer in areas of high COVID-19 rates. He would have denied the application.
Justice Breyer, joined by Justices Sotomayor and Kagan, also authored a dissent. He pointed out that “the District Court in the Diocese’s case found that New York’s regulations were ‘crafted based on science and for epidemiological purposes.’” He also noted that the regulations treated “religious gatherings . . . more favorably than similar gatherings” with comparable risks, such as “public lectures, concerts or theatrical performances.” He both agreed with Chief Justice Roberts that the Court should not issue an injunction in the current circumstances where no full hearing has taken place and where the applicants are no longer subject to the restrictions they oppose. His opinion was the only opinion to focus on the health risk to the public that New York State was trying to mitigate and avoid. He noted that COVID-19 had already killed 250,000 Americans—today just a week later over 265,000 have died—and New York was one of the hardest-hit states. The dissent was striking for its ability to see humanity through the technicalities of dogmatic levels of judicial scrutiny.
The Court’s decision has been criticized as dangerous to public health by CNN commentator precarious ground and replacing its own judgment for that of the experts of New York State’s public health system. Perhaps judicially even more dangerous is the fact that the majority merely attributes the decision to the Governor and does not seem to be fully cognizant of the fact that it was based on public health expertise. The American Medical Association and the Medical Society of the State of New York had submitted an amicus curiae brief in which they argued that attending religious service is among one of the riskiest activities during the pandemic. Whether the Justices in the majority intentionally ignored this expert opinion or just did not understand it, does not bode well for the integrity of the Court’s decision-making processes.
The Supreme Court’s understanding of religious freedom, in this case, is difficult to reconcile with the United States’ international legal obligations. Religious freedom is at its height when exercised without outward manifestation. This case clearly pitted the right to religious freedom against the right to health. Both rights are part of United States law and international law. The right to religious freedom is stated explicitly in article 18 of the International Covenant on Civil and Political Rights. The statement of this right is as vague as that in the U.S. Constitution. Nevertheless, the treaty adds explicitly that the right may be limited as “prescribed by law” and in ways that are “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” The protection of public health would seem to justify the New York restrictions, but so too would the rights of others. One of those rights found in customary international law, as well as in the New York State Constitution, is the right to health. Under international law, this right is reflected in Article XI of the American Declaration of the Rights and Duties of Man. Article XI states that “[e]very person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing, and medical care, to the extent permitted by public and community resources.” Although the American Declaration may not be legally binding in its own right, it is applied as reflecting customary international law by the Inter-American Commission on Human Rights. The decision of the U.S. Supreme Court therefore could give rise to the State responsibility of the United States for an internationally wrongful act. Part of the justification for such a finding would undoubtedly be the Court’s failure to balance these two competing rights.
With this relatively short per curiam opinion, the Supreme Court seems to be testing the faith that the American people have in the Court. It is a somewhat astonishing test of our faith in our highest judicial body, as its chance of success in confirming our faith would seem precarious at best. Nevertheless, high-profile decisions on healthcare and privacy as well as a possible political decision about reforming the Court that is on the horizon are likely to continue to test Americans’ tolerance of the Court’s unusual decision-making power.
Curtis Doebbler is an attorney for RAICES (Refugee and Immigrant Center for Education and Legal Services) and Research Professor of Law, University of Makeni, Sierra Leone, on partial leave until 2021.
Suggested Citation: Curtis Doebbler, Testing the Faith: Supreme Court, COVID-19 and Religion, JURIST – Professional Commentary, December 10, 2020, https://www.jurist.org/commentary/2020/12/curtis-doebbler-covid-cuomo-scotus/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
