Churches, synagogues appeal for worship rights again

The Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues in New York City filed emergency appeals in the past week asking the Supreme Court to bar enforcement of Gov. Andrew Cuomo’s most recent restrictions targeting in-person attendance at church services.

Cuomo’s October executive order limits attendance at church services to either 10 or 25 people, depending on where the church is located. His “microcluster” strategy targeting coronavirus hot spots has drawn challenges from religious believers who argue it singles them out.

A 2nd U.S. Circuit Court of Appeals panel previously declined a request from the diocese and synagogues to bar enforcement of the rules. In a 2-1 ruling, the majority found Cuomo’s order did not unfairly target houses of worship “given its greater or equal impact on schools, restaurants, and comparable secular public gatherings.” But in a dissent, Judge Michael Park argued the restrictions plainly targeted religious groups and slammed the governor for his “blunderbuss approach.”

In the petition to the Supreme Court, the diocese contends the governor’s order effectively closes churches while a wide range of businesses—from supermarkets to pet stores to huge hardware stores—may remain open without any capacity restrictions.

The court has narrowly rejected that argument twice. In May, U.S. Chief Justice John Roberts joined liberal justices in denying a similar petition from a California church in the South Bay Pentecostal Church v. Newsom case. In a concurring opinion, Roberts wrote courts should not second-guess decisions by state and local governments when “local officials are actively shaping their response to changing facts on the ground.”

Justice Brett Kavanaugh, in a dissenting opinion joined by Justices Neil Gorsuch and Clarence Thomas, pointed to the state’s lack of a compelling justification for treating churches differently than supermarkets, restaurants, or factories. He wrote that the state had ample room to draw lines, but “the Constitution imposes one key restriction on that line-drawing: The state may not discriminate against religion.”

Two months later, a challenge to Nevada Gov. Steve Sisolak’s worship restrictions met a similar fate. Roberts again joined liberal justices to reject the appeal. Justices Samuel Alito, Gorsuch, Kavanaugh, and Thomas would have stopped enforcement.

In a dissenting opinion, Alito wrote that governmental officials exercising emergency powers do not have free rein “to disregard the Constitution for as long as the medical problem persists.” He sharply criticized the court’s willingness to tolerate discrimination against places of worship while casinos remained open.

In a recent speech to The Federalist Society, an association of conservative lawyers, judges, and law professors, Alito said Nevada’s restrictions “blatantly discriminated against houses of worship.” Highlighting a number of disturbing trends, he said, “in certain quarters, religious liberty is fast becoming a disfavored right.”

But despite previous losses, the court may split the other way this time. Justice Ruth Bader Ginsburg’s replacement, Justice Amy Coney Barrett, will likely be more receptive to the church’s argument of governmental overreach and discriminatory treatment.

Justice Stephen Breyer, who handles emergency appeals from the circuit that includes New York, ordered the state to file responses to the appeals by Friday. A decision will likely follow in a matter of days.