WASHINGTON – On Nov. 25, the U.S. Supreme Court issued a temporary decision that New York Gov. Mario Cuomo may not enforce limits of ten and 25 worshipers.
Five Justices held that Cuomo’s virus risk classifications discriminated against the Roman Catholic Diocese of Brooklyn and Agudath Israel of America.
They found his restrictions “far more severe than has been shown to be required to prevent the spread of the virus.”
“It is hard to believe that admitting more than ten people to a 1,000 seat church or 400 seat synagogue would create a more serious health risk than the many other activities that the state allows,” the majority held.
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area.
“But even in a pandemic, the Constitution cannot be put away and forgotten.
“Catholics who watch a mass at home cannot receive communion, and there are important religious traditions in the Orthodox faith that require personal attendance.”
They found the diocese and the synagogue have complied with public health guidance and operated at 25 to 33 percent capacity for months without a single outbreak.
Dissenters argued that the Court didn’t need to act because Cuomo changed the classifications of the diocese and the synagogue to allow larger numbers of worshipers.
The majority responded that, “The governor regularly changes the classification of particular areas without notice.”
The decision will stand until the Second Circuit Court of Appeals disposes of an appeal that the diocese and synagogue filed after a district judge denied relief.
Justices Gorsuch, Kavanaugh, Alito, Thomas, and Barrett delivered the decision.
Gorsuch stated in a concurring opinion that, “Government is not free to disregard the First Amendment in times of crisis.”
He wrote that Cuomo considers hardware stores, acupuncturists, liquor stores, bicycle repair shops, accountants, lawyers, and insurance agents essential.
“Who knew public health would so perfectly align with secular convenience?” he wrote.
He wrote that other governors have issued similar edicts.
“At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples,” he wrote.
He wrote that many lower courts have read earlier decisions as invitations to slacken their enforcement of constitutional liberties while the virus lingers.
Kavanaugh stated in a concurring opinion that, “Judicial deference in an emergency or a crisis does not mean wholesale judicial abdication.”
He wrote that the restrictions weren’t tailored to the circumstances.
Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan dissented.
Roberts wrote that limits of ten and 25 persons may violate the Constitution but it wasn’t necessary to rule on that difficult question at this time.
“The governor might reinstate the restrictions but he also might not,” Roberts wrote.
Breyer wrote that if he reinstated the restrictions, the diocese and the synagogue could refile their applications and the Court could decide the matter in a day or two.
“According to experts, the risk of transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces,” Breyer wrote.
“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the state has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.”
Sotomayor expressed fear that the majority will exacerbate the nation’s suffering.
She compared restrictions on worship to restrictions on lectures, concerts, movies, sports and theatrical performances.
“Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily,” Sotomayor wrote.