Holiday cheer for New York worshippers

Orthodox Jews and Catholics in the New York City area got a happy Thanksgiving surprise. Minutes before midnight on Wednesday, the Supreme Court struck down Gov. Andrew Cuomo’s executive order virtually shutting down worship for the two religious communities.

In an unsigned 5-4 opinion, the justices barred the state’s Democratic governor from enforcing his 10- and 25-person occupancy limits on houses of worship in zones with high COVID-19 infections.

The court accepted Agudath Israel and the Roman Catholic Diocese of Brooklyn’s argument that the state singled out houses of worship for far harsher treatment than it gave businesses deemed “essential”—including acupuncture facilities, camp grounds, and garages. The governor could have curtailed the virus in a less restrictive way, the court wrote, including using capacity limits instead of hard caps.

“[E]ven in a pandemic, the Constitution cannot be put away and forgotten,” the majority wrote. “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.”

Justices Neil Gorsuch and Brett Kavanaugh filed concurring opinions. Gorsuch strongly criticized governors’ attempts in recent months to restrict worship services. “At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples,” Gorsuch wrote. “In far too many places, for far too long, our first freedom has fallen on deaf ears.” He also slammed the outsize influence of Chief Justice John Roberts’ concurring opinion this summer in South Bay Pentecostal Church v. Newsom, where Roberts supplied the fifth vote to uphold California Gov. Gavin Newsom’s bar on indoor worship for most Californians.

“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 concluded.

Dissenters argued that there was no need to issue an injunction because the churches and synagogues were no longer in the orange or red zones subject to the most severe restrictions. But Kavanaugh noted the executive order is still in force and could again apply to the areas in question.

In a Thanksgiving Day statement praising the ruling, Brooklyn Bishop Nicholas DiMarzio called the governor’s restrictions “an overreach that did not take into account the size of our churches or the safety protocols that have kept parishioners safe.”

Cuomo said the justices were “making a statement that it’s a different court,” reported CNN.

He’s not wrong. When the court reviewed a similar challenge to Nevada Gov. Steve Sisolak’s 50-person limit on attendance at worship services in late July, the justices split 5-4 to uphold the restrictions. Since then, Justice Ruth Bader Ginsburg has been replaced by conservative Justice Amy Coney Barrett.

The decision will likely affect two cases currently pending before the court involving less stringent COVID-19 orders. In a petition filed Nov. 20, Harvest Rock Church and Harvest Rock Ministries are challenging Newsom’s ban on indoor worship for most Californians, singing and chanting where services are allowed, and home Bible studies. Justice Elena Kagan ordered the state to respond by 4 p.m. on Saturday. San Diego-area South Bay United Pentecostal Church, which lost a bid for relief early in the pandemic, also has a petition seeking relief from the Supreme Court while the 9th U.S. Circuit Court of Appeals considers its case.