WASHINGTON – In recent months, churches in California and Nevada have asked the Supreme Court to lift government restrictions on attending church services intended to fight the coronavirus pandemic. The churches have lost.
The vote in both cases was 5 to 4, with Chief Justice John G. Roberts Jr. joining what was then the four-member Liberal wing. One of those Liberals, Justice Ruth Bader Ginsburg, died in September. His successor, Justice Amy Coney Barrett, joined the court last month.
It won’t take long to assess the significance of this change.
The Roman Catholic Diocese of Brooklyn on Thursday filed an emergency petition asking the Supreme Court to lift restrictions imposed by Governor Andrew M. Cuomo of New York. The case is broadly similar to the previous ones. The outcome, even if the pandemic worsens, can be very different.
The general question in all cases is whether officials or judges should calibrate responses to the public health crisis.
One view, expressed by Chief Justice Roberts in a concurring opinion in the California case, is that public protection officials “should not be subject to doubt by a federal judiciary. unelected, who does not have the background, skills and expertise to assess public health and is not accountable to the public.
Hours after the diocese filed its request, Judge Samuel A. Alito Jr. delivered a cutting speech to a conservative legal group expressing the opposite view. He had been a dissenter in the previous two cases, and his speech echoed the points he had made in the Nevada one.
“Whenever fundamental rights are curtailed, the Supreme Court and other courts cannot turn a blind eye,” Judge Alito said Thursday, rejecting the view that “whenever there is an emergency, executive managers have unlimited and non-reviewable discretion.
The court will likely rule on the Brooklyn dispute within the next week. The case may be the first in which Justice Barrett’s vote changes the direction of the court.
The restrictions in Brooklyn are severe. In the changing “red zones”, where the risk of coronavirus is highest, no more than 10 people can attend church services. In the slightly less dangerous “orange zones”, attendance is capped at 25. This applies even in churches that can accommodate more than 1,000 people.
The measures were prompted in large part by an increase in cases in Orthodox Jewish areas. But the restrictions applied to all places of worship.
Even though he spoke out against the diocese, Brooklyn Federal District Court Judge Nicholas G. Garaufis praised him as “an example of community leadership” who had “enforced stricter security protocols than the State did not require it ”.
Lawyers for Mr. Cuomo agreed, telling an appeals court that the diocese “had introduced laudable measures of social distancing and hygiene.”
The diocese said it intends to continue limiting attendance to 25% of the capacity of its churches and will accept other limitations, such as removing the singing of worshipers and choirs.
Justice Garaufis, who was appointed by President Bill Clinton, said the case was difficult. But he concluded he would defer to the governor. “If the court issues an injunction and the state is correct about the severity of the threat currently posed by sensitive neighborhoods,” the judge wrote, “the result could be preventable death on a large scale, like the New- Yorkers have known in the spring. “
By refusing to block the governor’s order while the diocese’s appeal proceeds, a divided panel of three judges from the United States Court of Appeals for the Second Circuit relied on the opinion concurring from Chief Justice Roberts in the California case. Since the restrictions on churches were less severe than those on comparable secular gatherings like theaters, casinos and gymnasiums, the majority wrote in an unsigned opinion they did not go against constitutional protections. for religious freedom.
Members of the majority were Judge Raymond J. Lohier Jr., who was appointed by President Barack Obama, and Judge Jed S. Rakoff, who usually sits in the Federal District Court in Manhattan and who was appointed by Mr. Clinton.
Judge Michael H. Park, who was appointed by President Trump, has expressed his dissent. He said Governor Cuomo’s order discriminated against places of worship because it allowed businesses such as liquor stores and pet stores to remain open without capacity restrictions.
In asking the Supreme Court to intervene, lawyers for the diocese argued that its “spacious churches” were safer than many “secular businesses that can open without restrictions, such as pet stores and brokerage firms, banks. and the bodegas ”. An hour-long mass, according to the diocese’s brief, is “shorter than many trips to a supermarket or big box store, let alone a 9 am-5pm job”.
Lawyers for Mr. Cuomo said gatherings like those in churches and theaters were different from shopping trips. “State limits on mass gatherings have always recognized that the risk of transmitting Covid-19 is much greater in gatherings where people arrive and leave at the same time and gather and mingle for community activity on a long period of time, ”the governor appeals court brief said.
Justice Park, the dissenting judge on the appeals court, has twice served as law clerk to Justice Alito, once in the Philadelphia Federal Court of Appeal and once in the Supreme Court. His dissent anticipated the remarks made Thursday by his former boss.
“The pandemic,” Judge Alito said, “has resulted in hitherto unimaginable restrictions on individual liberty.”
“This is particularly evident with regard to religious freedom,” he added. “It pains me to say this, but in some quarters religious freedom is quickly becoming an underprivileged right.