Among the major issues that the Supreme Court could weigh in on over the next few months is the coronavirus pandemic, which has killed nearly a quarter-million Americans since March and now rages uncontrolled throughout most of the country. Last week, the Roman Catholic Church’s Brooklyn diocese asked the justices to block new restrictions issued by New York Governor Andrew Cuomo in what could be a key first test of how Justice Amy Coney Barrett will handle these cases. Beyond that, the court’s decision could color future efforts to contain the spread of the virus in the near term and the extent to which the state can respond to future public health emergencies thereafter.
The lawsuit, Roman Catholic Diocese of Brooklyn, New York v. Cuomo, challenges Cuomo’s heightened restrictions on churches, synagogues, mosques, and the like as the second wave sweeps through American communities. In the state of New York, houses of worship are limited to 10 to 25 people at any time, depending on whether they fall into a “red zone” or an “orange zone,” respectively. The diocese argues that those strict limits run afoul of the Constitution’s Free Exercise Clause, which limits the government’s ability to restrict religious practices. A three-judge panel in the Second Circuit Court of Appeals ruled against the diocese and other religious groups last month, instead siding with public health officials’ broad powers to fight pandemics.
“The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones,” the panel concluded. “Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings.”
Judge Michael Park, writing in dissent, argued that the panel had been too deferential toward the state’s restrictions. “Those restrictions apply only to religious institutions; in the same zones, pet shops, liquor stores, and other businesses the Governor considers ‘essential’ remain open, free from any capacity limits,” he wrote. “By singling out ‘houses of worship’ for unfavorable treatment, the executive order specifically and intentionally burdens the free exercise of religion in violation of the First Amendment.”
The restrictions are themselves the product of New York’s unusual political circumstances. Local officials in New York City have struggled to contain a resurgence of the virus in the city’s Orthodox Jewish communities for a variety of reasons, including distrust of city leaders and a strict adherence to traditional practices. When officials like Mayor Bill de Blasio tried to enforce new restrictions on the community and publicly singled it out for not complying, those efforts were met with an immense political blowback. Cuomo’s decision to include all houses of worship in the state restrictions avoids the ugly optics—and constitutional perils—of singling out synagogues for closure.
At the same time, New York’s broad decree swept up religious communities that had faithfully followed public health officials’ instructions all along. In its brief for the court, the diocese noted that it had closed its doors during the first wave earlier this year before the state issued a sweeping order. “Thousands of the Diocese’s parishioners in Brooklyn and Queens will continue to be deprived of their core Free Exercise [Clause] rights on a daily basis until the matter is resolved in the lower courts—even though it is undisputed that the Diocese has complied with all prior public health regulations and operated safely without any COVID-19 spread since being permitted to reopen several months ago,” the diocese told the court.
New York will file its reply brief later this week; the Supreme Court could act any time after that. So far, the Supreme Court has turned down requests to block public health officials’ efforts to fight the pandemic. All of the cases that reached the court so far came through the court’s “shadow docket,” where it decides emergency motions and other consequential matters without oral arguments or full briefings. The closest that the justices came so far to issuing a comprehensive opinion on Covid-19 disputes was in South Bay United Pentecostal Church v. Newsom, a case in May in which a local California church unsuccessfully fought restrictions issued by California Governor Gavin Newsom.
In that case, the court did not release a majority opinion that laid out its reasoning. But Chief Justice John Roberts wrote a brief concurring opinion with the majority’s decision that outlined his own thinking on the matter. “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment,” he wrote. “Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
In other words, California’s order didn’t violate the Constitution’s protections for religious freedom in Roberts’s eyes because they were tailored to the public health crisis at hand and didn’t appear to single out religious activities for disfavor. “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” he wrote. The chief justice, citing a bundle of precedents, added that public health officials “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.”
To support this stance, Roberts favorably cited Jacobson v. Massachusetts, a 1906 case upholding mandatory smallpox vaccinations, which lower courts have heavily leaned on to uphold Covid-19 restrictions. The Brooklyn diocese argued last week that lower courts have interpreted Jacobson and Roberts’s own concurring opinion as creating “a blanket rule of rational-basis review—and effective carte blanche to impose unfettered restrictions on houses of worship—for the duration of the pandemic, regardless of how circumstances have evolved over time.” It asks that the courts instead evaluate these restrictions through strict scrutiny, a legal standard that places a far higher burden on the government to justify its actions.
Had the case reached the court in July or August, the diocese would likely have been out of luck. But Ruth Bader Ginsburg’s death in September and Justice Amy Coney Barrett’s confirmation in October may have changed the calculus for opponents of Covid-19 restrictions. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented without comment from the California ruling, signaling that it had been reached by Roberts and the court’s four liberals at the time. Legal observers generally expect Barrett, the court’s newest member, to vote closer to those four justices than to Roberts in most cases. At the Supreme Court, you only need to count to five.
How far could the court go when trimming back public health orders? The court’s conservatives haven’t given a clear picture yet. In Calvary Chapel v. Sisolak, for example, they appeared to be animated as much by personal disdain for the state’s gaming industry as by any broader First Amendment principles. “The Constitution guarantees the free exercise of religion,” Alito wrote in his dissent. “It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities.” Gorsuch, in his own dissent, declared that there is “no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.” It’s hard to imagine that the justices would make similar quips about car manufacturers in Michigan or coal mines in West Virginia.
Alito, in a speech for a Federalist Society event last week, aired his frustrations with aggressive public health measures to control the coronavirus’s spread. “All sorts of things can be called an emergency or disaster of major proportions,” he argued. “Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.” And on Jacobson, he claimed that the precedent “did not involve sweeping restrictions imposed across the country for an extended period, and it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.”
Exactly when, where, and how courts can intervene in these cases remains to be seen. John Fabian Witt, a Yale University law professor, argued that conservative judges in lower courts are already breaking with two hundred years of American legal thinking on epidemics and other public health crises. “For centuries, American constitutional law granted state governments broad public health powers,” he wrote. “‘Salus populi suprema lex,’ the old saying went: The health of the people is the supreme law.” With a vaccine hopefully imminent, the Supreme Court probably won’t be able to substantially change how the country responded to this pandemic. But it may define how future generations of Americans respond to the next one.