My Dad’s Bigger than Your Dad: When Favorable Treatment isn’t Enough
by Adriana Lujan-Flores, Secular Communities for AZ Legal Intern
On November 25, 2020, the U.S. Supreme Court ruled to stop New York Governor Andrew Cuomo from limiting church capacity in areas with high concentrations of COVID-19 cases. Executive Order 202.68 imposed a 10-person occupancy limit on “red zones” and a 25-person occupancy limit on “orange zones”— areas determined to be hot spots for the deadly virus. The 5-4 decision ruled that Cuomo’s executive order violated the free exercise clause of the First Amendment by allowing certain essential businesses (such as shops and laundromats) to operate with a higher occupancy than religious organizations.
The majority opinion insists that there is no reason to assume that churches and synagogues are more dangerous than other businesses, and that attending religious services from home is “not the same as personal attendance.” Justice Gorsuch’s concurrence belabors the point by repeatedly claiming that allowing liquor stores and bike shops to operate at a different standard from churches and synagogues is “treating religious exercises worse than comparable secular activities.”
However, liquor stores and bike shops are in no way comparable to churches and synagogues. As Justice Sotomayor points out in her dissent, people do not gather in large groups for over an hour in stores the way they do in houses of worship. Furthermore, Cuomo’s executive order actually treated religious organizations more favorably than comparable secular events such as concerts and cinemas, which have been closed entirely.
In fact, the only reason the order even mentions houses of worship is to give churches preferential treatment by allowing them to be open to the public at all. Sotomayor also points out the Court’s hypocrisy in considering applying heightened scrutiny to this case, but not to the President’s “Muslim ban” in Trump v. Hawaii, which prevented Muslims from certain countries from entering the United States.
The free exercise clause of the First Amendment prevents the government from prohibiting the exercise of religion. However, the right to freedom of religion doesn’t give every religious group a free pass to ignore the law. Courts have upheld legislation that burdens the free exercise of religion if there is some threat to public safety, peace, or order. Restrictions on large gatherings during a pandemic are intended to protect the public from a deadly virus that spreads through close contact from person to person.
Justice Breyer notes in his dissent that the uncertain nature of COVID-19 creates a strong argument for the state to take actions to curb the risk of spread. But the majority of the Court rejects this as a compelling reason to restrict church capacities — essentially ignoring warnings from public health experts — because there is not evidence that these specific churches have already increased the spread of COVID-19. The court seems to suggest a reactive approach to the pandemic by not allowing local governments to take preventive measures until it is too late.
Three weeks after the opinion in Roman Catholic Diocese of Brooklyn v. Cuomo was issued, the country is already seeing the decision’s effects. On December 15, the Supreme Court accepted an appeal from a Colorado church fighting a 50-person occupancy limit, despite the fact that the restriction had already been lifted by the governor. On the same day, the Court granted a similar appeal by a New Jersey church. Both cases relied on the precedent set in Cuomo’s case, and it is likely that other organizations will use the case to fight pandemic-related restrictions going forward.
Notably, the 10-25-person capacity limitations were no longer in effect in New York by the time this case reached the Supreme Court, so the injunction will have little direct impact. Nonetheless, the Court decided to issue an opinion anyway, just in case the restrictions are reinstated.
This case is just an example of religious organizations testing how far the Court will go to allow churches to act above the law. Even though houses of worship were given preferential treatment under Cuomo’s executive order, that was not enough for an entity that is used to having absolute power.
Secular Communities for AZ Legal Intern