The US Supreme Court late Wednesday ruled against NY Governor Andrew Cuomo in the combined case of Roman Catholic Diocese of Brooklyn, New York v. Andrew m. Cuomo, and Agudath Israel of America, et al. v. Cuomo, enjoining him from enforcing an executive order of 10- and 25-person occupancy limits in houses of worship in areas suffering from high infection levels of the Covid-19 pandemic.
The court addressed two applications: one filed by the Roman Catholic Diocese of Brooklyn, the other by two synagogues, an Orthodox Jewish organization, and two individuals. The applications said the restrictions imposed by Governor Cuomo violated constitutional protections for the free exercise of religion, and the synagogues also argued that the governor “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic,” practically accusing him of anti-Semitism.
In New York State’s “red zones,” a maximum of 10 people are allowed to attend religious services. In the “orange zones,” as many as 25 may attend. The state’s guidelines apply even in churches that are large enough to seat more than a thousand congregants.
New York’s solicitor general Barbara D. Underwood wrote the court last Thursday that the color-coded zones were being modified and that as of last Friday, “none of the diocese’s churches will be affected by the gathering-size limits it seeks to enjoin.” On Friday, she told the court that the two Aguda synagogues who were suing the governor were also no longer subject to the restrictions.
But the court went ahead and ruled on the appeal even though the appellants were no longer subject to the reported hardships. The vote was 5 to 4, with Chief Justice John Roberts dissenting alongside the liberal justices Sonia Sotomayor, Elena Kagan, and Stephen Breyer.
This was the first opportunity for President Donald Trump’s two newest appointments, Justices Brett Kavanaugh and Amy Coney Barrett, to cast decisive votes when, clearly, had Justice Ruth Bader Ginsburg still been with us, the decision would have gone 5-4 the governor’s way.
The majority ruled per curiam (by the court as a whole) that Gov. Cuomo’s restrictions violated the First Amendment’s protection of the free exercise of religion, and Justice Neil Gorsuch, another Trump appointee, added an opinion saying Cuomo treats secular businesses and institutions more favorably than he does houses of worship: “It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”