The Supreme Court ruled 5-4 in favor of the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, et al., on Wednesday night in their case against New York Gov. Andrew Cuomo over his coronavirus lockdown order.
The plaintiffs sought emergency relief from Cuomo’s Executive Order 202.68, which placed occupancy limits of 10 individuals on churches and synagogues in so-called red zones and 25 for those located in orange zones.
The governor’s website defines an orange zone as an area where the seven-day rolling average rate of COVID-19 positivity is above 3 percent for 10 days and the seven-day average number of new daily cases per 100,000 residents is 10 or more. A red zone is an area in which the positivity rate remains above 4 percent for 10 days.
According to the Supreme Court’s per curiam, the applications for relief from the Democratic governor’s lockdown order said it violated the “free exercise” clause of the First Amendment.”
Further, they “maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.”
The Agudath Israel application also said Cuomo “specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included.”
Justice Neil Gorsuch wrote the concurring opinion in the case — and he pulled no punches.
Gorsuch began by pointing out Cuomo’s glaring hypocrisy.
“The Governor has chosen to impose no capacity restrictions on certain businesses he considers ‘essential,'” he wrote. “And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too.
“So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
“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.”
Gorsuch continued his scathing rebuke of the governor’s double standard.
“As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task,” he wrote.
“People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of ‘essential’ businesses and perhaps more besides.
“The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all ‘essential’ while traditional religious exercises are not.
“That is exactly the kind of discrimination the First Amendment forbids.”
Finally, Gorsuch stated the obvious, which is the political nature of Cuomo’s “edict.” He said he was keenly aware that “certain other Governors” have been doing the same thing.
“At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples,” the justice said.
The vote of the court’s newest justice, Amy Coney Barrett, was pivotal in this case.
The New York Times reminds us of two similar cases “concerning churches in California and Nevada. In those cases, decided in May and July, the court allowed the states’ governors to restrict attendance at religious services.”
The difference between those earlier decisions and Wednesday’s ruling was the replacement of Justice Ruth Bader Ginsburg, who died Sept. 18, with Barrett.
It’s notable that, in all three of these cases, Chief Justice John Roberts ruled in favor of the governors who issued what many of us believe to be unconstitutional orders.
Although Roberts was nominated to the Supreme Court by George W. Bush, he regularly votes with the liberal wing of the court.
Fortunately, the three justices appointed by President Donald Trump — Gorsuch, Barrett and Brett Kavanaugh — don’t seem inclined to approve of infringements on Americans’ religious freedoms.
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