Roman Catholic Diocese of Brooklyn v. Cuomo
Introduction
Freedom of religion is addressed in two facets of the First Amendment that have come to be known as the Establishment Clause and the Free Exercise Clause, which prohibit Congress from making “law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Supreme Court has considered the import of these clauses many times, and in 2020, the Court returned to these issues in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the Diocese asserted that the Free Exercise Clause was violated by an executive order that restricted religious gatherings because of COVID-19.
Facts
In an effort to control the COVID outbreak, on October 6, 2020, New York Governor Andrew Cuomo issued an executive order that restricted activities of houses of worship deemed to be “red zones.” The Executive Order defined red zones as areas with high concentrations of COVID cases. In red zones, religious gatherings were restricted to a maximum of ten people, while secular gatherings were prohibited. The Order also permitted essential businesses to remain open with no restrictions on the number of people. The Order also defined the areas surrounding red zones as orange zones, where a maximum of twenty-five people could attend religious gatherings and a maximum of ten people could attend secular gatherings. High-risk, non-essential businesses were closed in orange zones.
Legal Background
The Roman Catholic Diocese of Brooklyn requested that a court issue an injunction to stop Cuomo’s executive order on the ground that it violated the free exercise of religion as guaranteed by the First Amendment. The Agudath Israel of America and affiliated entities filed for an injunction on the same ground.
Part of the attack on the order was that what was permitted – going to stores – entailed people gathering that could include more than ten people. For example, the Diocese argued that “‘hundreds of people [shopped]’” in a large store “‘on any given day.’” Another argument was that religious settings had not been shown to be sources of infection. The Diocese contended that “‘there ha[d] not been any COVID–19 outbreak in [its] [reopened] churches,’” and the Agudath Israel asserted that it had “‘rigorously implemented and adhered to all health protocols’” of the Governor and that there had been “‘no outbreak of COVID–19 in [its] congregations.’”
The U.S. District Court of the Eastern District of New York denied the Diocese’s and the Agudath Israel’s request for a preliminary injunction. The Diocese appealed to the U.S. Court of Appeals for the Second Circuit and, in an unusual move, also sought to obtain relief directly from the Supreme Court of the United States.
Holding & Reasoning
In a per curiam decision, the Supreme Court reversed the district court’s denial of an injunction and granted temporary injunctive relief to the plaintiffs while they pursue appellate review. In order to determine whether a preliminary injunction is proper, the Court must find that the party seeking an injunction can establish a likelihood of success on the merits, that denying the injunction would cause irreparable injury, and that the grant of an injunction would not result in harm to the public interest. The Court found that the three conditions were met.
Regarding the free exercise and non-establishment clauses, the Court agreed with the plaintiffs’ argument that the Executive Order did not satisfy the “‘the minimum requirement of neutrality’” because religious services were more harshly restricted than some secular “essential” businesses such as “acupuncture facilities, camp grounds, [and] garages.” Because of the lack of “neutrality” and “general applicability,” the Court used its test of “strict scrutiny.”
Disagreeing with the District Court, the Supreme Court found that, although controlling the pandemic outbreak is a “compelling government interest,” the executive order was not “narrowly tailored” to this purpose because it was more restrictive than regulations adopted by other jurisdictions “hard-hit” by COVID, and other methods can be used to lower the risk of spreading COVID during religious services. The Court believed these factors show the plaintiffs’ “First Amendment claims are likely to prevail,” which is the first part of the requirement for injunctive relief.
On the second point, the Supreme Court concluded that withholding relief to the Diocese would lead to irreparable injury to First Amendment rights as the limit on the number of people would cause the majority to be unable to participate in religious services that require personal attendance.
On the third point, the Court found that granting relief would not harm public interest as “the State has not shown that public health would be imperiled if less restrictive measures were imposed.”
Finally, the Court concluded that the matter was not moot, despite the locations of the plaintiffs’ houses of worship being reclassified as yellow zones, because these areas are subject to reclassification without prior notice and if not granted in the moment, injunctive relief might not be provided in a timely manner “before another Sabbath passes.” Justice Roberts’s dissenting opinion, however, argued that the case was rendered moot by the reclassification of the zones.
Analysis
Many questions exist about how to assess whether religion was treated differently by the Governor’s executive order. Although the Governor restricted the attendance at houses of worship in red zones to ten people, other secular gatherings, which constituted a similar COVID risk, were prohibited. Contrary to the Supreme Court opinion that the treatments of religious and secular activities were more “disparate” in orange zones, the regulations continued to favor religious gatherings, which were given a twenty-five-person limit compared to the ten-person limit of secular gatherings.
As expressed in the dissenting opinions of Justices Breyer and Sotomayor, Governor Cuomo’s restrictions on religious gatherings clearly were not more severe than his restrictions on similar secular gatherings. In addition, although there were looser restrictions on “essential” businesses, the COVID risks presented by essential businesses such as stores are not comparable to those of religious gatherings which involve “people gathering, speaking, and singing in close proximity indoors for extended periods of time,” conditions which medical experts define as high-risk for spreading COVID.
The concurring opinion of Justice Gorsuch states that “long-settled principles” of the freedom of religious exercise cannot be “ignored” during the COVID-19 pandemic.24 However, in a time of crisis, common sense should not be overlooked. As Justice Breyer mentions in his dissenting opinion, there has been a “second surge of infections” and the number of confirmed COVID cases has “risen” since the end of summer.25 The increase in the number of new COVID cases per day in New York State between the rejection of injunctive relief by the District Court and the reversal by the Supreme Court could have been caused by many factors. However, if the number of new infections was already rising when the restrictions were in force, the Supreme Court should not have issued the injunction against the restrictions. The public interest was indeed harmed by the Court granting injunctive relief, in violation of Winter v. Natural Resources Defense Council, Inc.