Is SCOTUS turning the corner on COVID-19 restrictions?
by Sarah Harbison, General Counsel at the Pelican Institute
As many of us were completing our Thanksgiving Day meal prep on Wednesday, Nov. 25, the U.S. Supreme Court granted a temporary injunction against New York Governor Andrew Cuomo’s executive order limiting religious service attendance. The ruling is something Louisiana lawmakers and citizens alike should take note of, particularly as the state moves back into Phase 2 of COVID-19 restrictions.
Justices Thomas, Alito, Barrett, Kavanaugh, and Gorsuch joined together to find that the applicants, the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, were likely to prevail in their complaint that Gov. Cuomo’s restrictions violate the First Amendment’s Free Exercise guarantee.
New York State identifies COVID-19 clusters and categorizes the surrounding areas as red zones, orange zones, and yellow zones. The executive order at issue here limited occupancy at religious services to 10 persons in red zones and 25 in orange zones. The petitioners argued that these restrictions violated their First Amendment rights because houses of worship are treated more harshly than comparable secular facilities.
The Court considered the likelihood that the parties would prevail on the merits of their First Amendment claims, as well as whether denying relief would lead to irreparable injury and whether granting the parties relief would harm the public interest. The Court’s majority determined that the occupancy restrictions singled out houses of worship for unequal treatment. In red zones, where a 10-person gathering limit was imposed, essential businesses were not likewise restricted. In fact, there were no occupancy restrictions whatsoever placed on essential businesses, which the Justices note include grocery stores, acupuncturists, bicycle shops and liquor stores. In orange zones, houses of worship were limited to 25 persons at services, while non-essential businesses were allowed to decide for themselves how many people to admit.
Because these restrictions on petitioners’ First Amendment rights are neither neutral nor generally applicable, they must satisfy a standard known as strict scrutiny. Strict scrutiny requires that the restrictions be narrowly tailored to achieve a compelling governmental interest. The Justices agreed that curbing the spread of COVID-19 is indeed a compelling government interest. However, they found that the 10- and 25-person occupancy restrictions that only applied to religious services were more restrictive than necessary to prevent the spread of the virus.
Instead, the Justices recommended that an occupancy restriction based on a percentage of the number of worshipers the sanctuaries could accommodate would be a less restrictive measure that advances the government’s interest in stopping the spread of the virus.
The Court also found for the petitioners on the questions of irreparable injury and harm to the public interest. The Court has long held that the loss of First Amendment freedoms for even a short period constitutes an irreparable harm. Further, the Justices noted that Gov. Cuomo failed to show that attendance at religious services within the Diocese of Brooklyn or at Agudath Israel congregations contributed to the spread of COVID-19.
Regular readers will find Justice Gorsuch’s concurring opinion to be of interest. In fact, he may have been watching our PeliCast discussion of this issue with CNN political analyst, Sarah Isgur. Justice Gorsuch wrote separately to admonish states that would ignore long standing constitutional principles in light of the pandemic. “Government is not free to disregard the First Amendment in times of crisis,” he wrote.
On the PeliCast, Isgur noted that because police powers are at their strongest early in the pandemic, the government could impose more restrictive measures to stop the spread. However, she cautioned that over time as we better understand the virus, the justifications for the restrictions early in the crisis may no longer exist. Justice Gorsuch wrote, “as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow,” the rationale for strict government restrictions the Court considered earlier in the year has expired.
Justice Gorsuch’s writing underscores this ruling, and as they consider future shutdown restrictions, Louisiana leaders should join others around the nation in heeding his advice.