“If the court issues an injunction and the state is correct about the severity of the threat that sensitive neighborhoods now pose,” the judge wrote, “the result could be a large-scale preventable death like New Yorkers. have experienced in the spring. “
By refusing to block the governor’s order while the two appeals continued, a divided panel of three judges from the United States Court of Appeals for the Second Circuit relied on the concurring opinion of the chief justice Roberts in the California case. Since the restrictions on churches were less severe than those on comparable secular gatherings, the majority wrote in an unsigned opinion, they did not go against constitutional protections for religious freedom.
Dissenting, Justice Michael H. Park said Mr. Cuomo’s order discriminated against places of worship because it allowed businesses like liquor stores and pet stores to remain open without capacity restriction.
Chief Justice Roberts rejected a similar argument in the California case. The ordinance, he writes, “exempts or treats with more leniency only dissimilar activities, such as the operation of grocery stores, banks and laundromats, in which people do not congregate in large groups. nor stay nearby for long periods.
Justice Park responded that the order in the California case, as it did in the context of an emergency request that was summarily decided, had limited force as a precedent. Moreover, he wrote, it had been “decided at the very beginning of the pandemic, when local governments were struggling to prevent the health system from being overwhelmed.”
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, brokerage offices, 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”.
Ms. Underwood responded that religious services present special risks. “There is a documented history of religious gatherings serving as high profile Covid-19 events,” she wrote.