Thursday, June 24, 2021

The United States Supreme Court, in two cases it ruled on together, Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel of America v. Cuomo, last month issued an order temporarily barring Governor Cuomo from enforcing strict restrictions on the number of people allowed at houses of worship. In a 5-4 decision, the court determined that Cuomo’s restrictions on the number of worshipers treated houses of worship much more harshly than comparable secular facilities. The court therefore concluded that the plaintiffs would likely prevail in their lawsuits challenging the restrictions under the free exercise of religion clause of the First Amendment to the U.S. Constitution.

This combined decision marked a sharp reversal from the court’s ruling in a similar case earlier this year, South Bay United Pentecostal Church v. Newsom, in which a California church had challenged Governor Newsom’s restrictions on attendance at houses of worship. In that case, the Court deferred to the state’s arguments that the public health emergency justified the restrictions. But in Diocese v. Cuomo, the court took the opposite position, stating that the state had not shown that public health would be imperiled if less restrictive measures were imposed. The court stated emphatically that “[e]ven in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

In large part as a result of the Supreme Court’s decision, the Second Circuit Court of Appeals, which had earlier denied the plaintiffs’ requests for a temporary injunction preventing Governor Cuomo from enforcing the restrictions on attendance at worship services in Roman Catholic Diocese of America v. Cuomo and Agudath Israel of America v. Cuomo, has just issued a decision ordering the district court to issue an injunction preventing the Governor from enforcing the 10-person and 25-person limits on attendance in certain zones, and to consider whether the governor’s limits on capacity of attendance (25% in certain zones and 33% in other zones) violate the First Amendment, which protects religious freedom.

The Supreme Court decision has already had a profound effect on other cases as well across the country involving restrictions on attendance at worship services—and on the contours of more recent orders governors have imposed. Other federal courts must now reconsider their previous rulings upholding restrictions on attendance at houses of worship based on the Diocese v. Cuomo decision.

In Harvest Rock v. Newsom, for example, a California church challenged Governor Newsom’s restrictions on the number of people allowed at houses of worship. At the time the lawsuit was initially filed, indoor worship services were completely prohibited in many California counties with high COVID-19 rates, and limited to 25% of capacity or 100 people, whichever is less, in counties with somewhat lower COVID-19 rates. The Supreme Court vacated, or threw out, the district court’s ruling against Harvest Rock Church, sending the case back to the United States Court of Appeals for the Ninth Circuit with instructions that the appellate court order the district court to reconsider the case in light of the Supreme Court’s decision in Diocese v. Cuomo.

Diocese v. Cuomo is also being invoked in another case in California. Calvary Chapel San Jose Church, which was fined $255,000 by a Santa Clara County judge for violating that county’s order limiting indoor gatherings at houses of worship to 100 people, is appealing the fine in state court and also asking a federal district court to nullify the county court’s ruling. The church’s attorneys are arguing that the county’s order is unconstitutional as it is too restrictive, basing their argument on the Supreme Court’s ruling in Diocese v. Cuomo and also on the Supreme Court’s decision in the Harvest Rock v. Newsom case. Also in California, Los Angeles County has, as a result of the Supreme Court’s ruling, issued a new order allowing indoor worship services as long as attendees wear masks and maintain social distancing.

In a New Jersey case, Robinson and Knopfler v. Murphy, an Orthodox Jewish rabbi and a Catholic priest have both challenged Governor Murphy’s restrictions on attendance at houses of worship, which set a limit of 25% of capacity or 150 people, whichever is lower, while businesses and schools are allowed to operate at 100% of capacity. The federal district court in New Jersey denied the rabbi and priest’s requests for an injunction barring the governor from enforcing those restrictions. The Third Circuit Court of Appeals upheld the district court’s ruling. But the U.S. Supreme Court vacated the district court’s ruling and sent the case back to the Third Circuit, with instructions that it send the case back to the district court for reconsideration in light of the Diocese v. Cuomo decision.

In a fourth case, High Plains Harvest Church v. Governor of Colorado, a church requested that a federal court bar enforcement of state restrictions on attendance at houses of worship. Colorado had restricted attendance at religious services to 50 people or 25% of capacity. After losing in the lower courts, the church appealed to the U.S. Supreme Court, which once again vacated the lower court decisions and directed them to reconsider the case in light of Diocese v. Cuomo.

In a different but similar context, a school in Kentucky attempted to challenge the governor’s temporary school closing order that had closed all schools, including religious schools, until January 4. The Danville Christian Academy together with the attorney general of Kentucky applied for and received a temporary order from a federal district court preventing the closing order from being applied to religious schools. In that case, called Danville Christian Academy v. Beshear, the school argued that while the order applied equally to secular and religious schools, it treated schools more harshly than other secular entities such as restaurants, bars and gyms, which were not ordered closed. But the federal district court decision was overturned by the Sixth Circuit Court of Appeals, which reinstated the governor’s order.

That case, too, reached the U.S. Supreme Court. In that instance, however, the Supreme Court did not invoke Diocese v. Cuomo but instead ruled tersely that given the impending expiration of the Kentucky’s school closing order, the application for a preliminary injunction was denied. The Court did not explain the distinction between this case and the houses of worship cases mentioned above, but did imply that if the governor were to issue a school closing order that extended further, it would be open to hearing the case.

While it remains to be seen how the federal courts in California, Colorado and New Jersey will rule in the above-cited cases, the Supreme Court has sent a very clear message to them and to state governments: COVID-19-related restrictions on religious institutions will be subject to strict judicial scrutiny and are likely to be struck down as unconstitutional if they treat religious entities more harshly than secular ones. Such orders can easily be held to violate the First Amendment, which guarantees freedom of religion.

The Supreme Court’s decision in Diocese v. Cuomo, and its subsequent rulings in the other cases centering on state restrictions on attendance at houses of worship, may well encourage additional court challenges to existing or future orders that impose restrictions on religious institutions. As a result, governors and other officials will likely be more even-handed in the issuance of new orders, and lower courts more deferential to religious institutions that challenge state-level restrictions.

Joey Aron is the founding attorney of Aron Law, PLLC, a boutique law firm in Brooklyn, where he focuses on FOIL litigation and matters pertaining to religious discrimination.

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