The 5-4 Thanksgiving eve decision by the Supreme Court striking down an order by New York Gov. Andrew Cuomo restricting the size of religious gatherings should serve as a warning to other governors that they cannot impose greater restrictions on religious venues than on other venues, said legal experts.
Those experts contacted by The Jewish Link also stressed that the decision was narrow in scope and does not necessarily foreshadow an embrace of religious issues now that the court has a conservative majority with the addition of Justice Amy Coney Barrett replacing the late Ruth Bader Ginsburg.
The case was brought by Agudath Israel of America and the Roman Catholic Diocese of Brooklyn.
In the Nov. 25 ruling the court found Cuomo’s decision to impose 10- to 25-person limits on houses of worship in designated orange and red zones where coronavirus cases were spiking placed an unfair burden on those institutions not imposed on secular institutions.
“At no point did we ask to be treated more leniently and at no point did we act as if we were unconcerned about this health crisis,” Agudath Israel’s Director of Public Affairs Rabbi Avi Shafran told The Jewish Link, adding the organization was gratified by the court’s decision.
He noted that at its recent virtual convention, Executive Vice President Rabbi Chaim Dovid Zwiebel “made it very clear” all precautions should be taken in the face of a growing pandemic for both health reasons and so the general community “sees us not as scofflaws but as exemplars” practicing social distancing and wearing masks.
“Religion cannot be treated as an orphan,” said Rabbi Shafran. “Going to shul for a Jew is just as essential as it is important to go to a supermarket. If we are an essential service we should be treated that way.”
The legal experts agreed the court’s narrow legal stance did not signal an objection to having restrictions placed on houses of worship.
“The tricky thing about this case is that the restrictions applied to the houses of worship were in some cases stricter and in other cases more lenient than the regulations applied to secular entities,” said Carlos A. Ball, Distinguished Professor of Law and Judge Frederick Lacey Scholar at Rutgers Law School in Newark.
Ball, a constitutional law expert, noted that, for example, hardware stores were permitted to open without any restrictions on the number of people permitted inside, while theaters and dance studios could not open at all.
“As a result, the case came down to how much deference to give government officials coping with the pandemic as they made judgments regarding which places could open without restrictions, which with restrictions and which not at all,” he explained. “The majority was not willing to defer to those judgments because it viewed the restrictions as discriminating against houses of worship.”
This could hinder government officials in placing tighter controls on religious gatherings than on other secular spaces, even though people spend more time at a religious service than at those secular venues, said Ball.
Thomas Healy, a professor at Seton Hall Law School, who writes about and teaches courses on constitutional law and the First Amendment, said he believed the ruling has implications for other governors.
“If you’re going to put limits on the number of people who can be in a church, synagogue or mosque you have to put the same limits on secular institutions,” he said. “The court is not saying a state is prohibited from limiting people at a religious service.”
Healy said he believed if Cuomo had changed the rule and capped the number of people at the same level in bicycle and liquor stores or acupuncturists as he had at religious institutions the court would have let the restrictions stand.
Ball said that while generally cases are moot and would not be heard after the order being challenged has been rescinded, as was the case in New York where the severe restriction had been lifted because of a drop in cases, the court can make a special exemption.
“The majority of the justices believed it was appropriate to reach the merits of the lawsuit because it is possible that the governor might once again order the religious plaintiffs to abide by the restrictions in question,” he said. “In contrast, the dissenting justices reasoned that it was improper for the court to decide the case given that the governor had lifted the restrictions. The dissent noted that if the governor reimposed the restrictions on the plaintiffs, then the courts would be able to decide the case then relatively quickly.”
The case centered on the First Amendment, which has two provisions, the Establishment Clause, which prohibits the government from establishing an official religion and from favoring one religion over another; and the Free Exercise Clause, which guarantees free exercise of religion.
William Araiza, the Stanley A, August Professor of Law at Brooklyn Law school, said historically cases involving the Free Exercise Clause receive “a high level of judicial scrutiny.” Yet the majority opinion still acknowledged being in the midst of a pandemic where gathering in close proximity is dangerous.
“They just had the sense that Cuomo had gone too far,” he noted. “I don’t think the courts will strike down every restriction. I just don’t think the court will be that reckless, but the states have been given notice that they just can’t discriminate against religion when they draw up these lines.”
The court previously upheld restrictions on religious gatherings in California and Nevada, albeit while Ginsburg was still on the court. Yet, Healy pointed out, in those instances the regulations were more in line with those placed on secular institutions.
Likewise, in New Jersey’s case, restrictions on religious gatherings are more lax at 150 attendees or 25% of capacity, so would be unlikely to face a successful challenge.
Araiza said conversely government leaders may also face the legal conundrum of weighing whether religious institutions should be subject to more favorable consideration if they voluntarily impose stringent safety protocols or if the risk in virus transmission is perceived to be different.
“All this analysis of discrimination versus religious institutions depends on the definition of equality,” he explained. “If it really is true that a wine store or bicycle shop poses the same risk as a religious service then they really are essentially equivalent. But if there is a difference in the risk posed then there is a difference. There is singing that one does in many church or synagogue services, but not in a bike shop or restaurant. And if a religious community commits to reducing risk at its services does that justify more favorable treatment?”
In line with that, Araiza believes both government and religious institutions will be met with some hard choices in the coming months.
While the experts agreed Barrett’s addition to the court likely will create a more favorable environment for religion, Araiza pointed out the court has been “tilting” in favor of religion for the last 10 years. He also alluded to the predilection of Chief Justice John Roberts to lately side with the more liberal judges on the court.
“It’s a pretty fair guess Justice Barrett will be very disposed to claims of religious freedom,” he said. “It’s been a fascinating dynamic with Roberts because he kind of tilts to keep the court in balance. He dissented not because he thought the claim was wrong or invalid. He just felt it was moot.”
Healy said, “You can’t read too much into this decision because this case turned on the particular facts. I don’t see how this decision changes anything. It doesn’t establish any precedent. It just makes clear something we already knew—Barrett replacing Ginsburg means there will be more decisions ruling in favor of the free exercise of religion.”
Other Orthodox religious organizations also hailed the ruling. Orthodox Union president Mark (Moishe) Bane in a prepared statement called the ruling “most welcome” in upholding “an essential American principle—that the government may not impose rules represented as being ‘neutral’ but that are actually unfair in their treatment of religious exercise.”
He congratulated Agudath Israel and said the OU strongly encourages synagogues “to vigorously follow all health guidelines.”
The National Council of Young Israel in a statement said it also strongly encouraged safety protocols, adding, “The right of all Americans to enjoy freedom of religion is a sacrosanct privilege afforded to us by the United States Constitution that cannot be trampled upon by anyone, including government officials. For religious individuals and people of faith, having the ability to pray in a synagogue or other place of worship is a core component of their communal life and inhibiting their ability to do so is inequitable and injurious. Houses of worship cannot be singled out in a punitive fashion while it is business as usual at other facilities, and we are grateful that the court ruled that this type of double standard will not be tolerated.”
