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The Supreme Court Was Right to Block Cuomo’s Religious Restrictions
The balance between Covid-19 precautions and civil liberties doesn’t need to be a partisan issue.
By Michael W. McConnell and
Mr. McConnell is a law professor and director of the Constitutional Law Center at Stanford Law School. Mr. Raskin is an adjunct professor of law at New York University.
The Supreme Court last week made a major move toward constitutional normalcy: It blocked enforcement of Gov. Andrew Cuomo’s hyper-restrictive rules for in-person religious services in New York until the government provides logical justification for treating worship more harshly than seemingly comparable (or riskier) activities.
Unfortunately, the substance of the decision has been drowned out by a single-minded focus on judicial politics — the first evidence that President Trump’s appointments to the court are making a difference. Maybe that is so. In the first two pandemic-related worship-closure cases to get to the court this year, it declined to intervene by 5-to-4 votes, with Chief Justice John Roberts joining the Democrat-appointed justices in deferring to state regulators. Last week’s decision went in favor of the Catholic and Orthodox Jewish plaintiffs, with the chief justice in dissent.
But politics is a distorted lens for understanding the case. Looking to the substance, six justices agreed that the Free Exercise Clause was probably violated by the governor’s order. The restrictions, which are far more draconian than those approved by the court in the earlier cases, are both extraordinarily tight and essentially unexplained. In red zones, where infection rates are the highest, worship is limited to 10 persons, no matter how large the facility — whether St. Patrick’s Cathedral (seating capacity: 2,500) or a tiny shul in Brooklyn. Because Orthodox Jewish services require a quorum (“minyan”) of 10 adult men, this is an effective prohibition on the ability of Orthodox women to attend services.
Orange zones are only slightly less restrictive; 25 congregants may attend.
In both red and orange zones, “essential” businesses — a broad category that includes everything from big-box retailers to pet shops to lawyers’ offices — may remain open without capacity limitations. One reads the parties’ briefs in vain for a cogent explanation of the difference in treatment. The briefs note that worship services in excess of 500 have spread the coronavirus and that some experts think numerical caps are more efficacious than percentages. But they give no systematic explanation of why the governor crafted the restrictions as he did.
Justice Sonia Sotomayor was convinced that churches are not comparable with retail outlets, reasoning that “bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time.” But, putting aside the fact that liquor stores and bike shops are not necessarily typical — think the Home Depot on a Saturday — customers are not the only members of the public who matter. The workers at stores and factories are exposed to every single customer and co-worker who enters, and they remain for an entire workday in the same indoor space, often not effectively socially distanced. They may not sing, but they have been known to laugh, shout or yell.
In the beginning of the pandemic, no one knew what worked and what didn’t. Courts were understandably reluctant to second-guess. But we are now 10 months into the pandemic. Why are governments still picking and choosing among constitutional rights without explaining their reasoning?
The five justices in the majority were not the only ones skeptical of Governor Cuomo’s orders. Neither the chief justice nor Justice Stephen Breyer signed on to Justice Sotomayor’s dissent, the only opinion that squarely upheld the restrictions on their merits.
Indeed, Chief Justice Roberts noted, “it may well be that such restrictions violate the Free Exercise Clause,” and Justice Breyer, stressing how remarkably low the permitted numbers were, wrote that “the State of New York will, and should, seek ways of appropriately recognizing the religious interests here at issue without risking harm to the health and safety of the people of New York” — signaling that he agrees that some accommodation ought to be made.
Likewise, the justices in the majority seemed to have little sympathy for a general rebellion against all Covid-19 mandates. Justice Brett Kavanaugh, a Trump appointee, specifically noted that he did not “doubt the state’s authority to impose tailored restrictions — even very strict restrictions — on attendance at religious services and secular gatherings alike.” During a public health emergency, individual freedoms can be curtailed where necessary to protect against the spread of disease. Most of this authority is at the state and local, not the federal, level. But when public health measures intrude on civil liberties — not just religious exercise, but other constitutional rights — judges will insist that the measures be nonarbitrary, nondiscriminatory and no more restrictive than the facts and evidence demand.
The real disagreement between Chief Justice Roberts and Justice Breyer and the majority was over a technical though important detail. This disagreement made the court look more fractured than it actually was. Just days before the decision, on Nov. 19, the governor’s lawyers sent the court a letter stating that he had redrawn the red and orange zones in Brooklyn, conveniently putting the churches and synagogues that were the focus of the litigation into the more permissive yellow zone. The letter cited no reasons for the reclassification and offered no assurance that it might not happen again, at a moment’s notice, with no more explanation than this time.
The court majority regarded the governor’s about-face as too fleeting and changeable to derail a decision on the merits. Chief Justice Roberts and Justice Breyer, by contrast, concluded that the change eliminated any need for the court to intervene, at least for now. That is a reasonable position (though we disagree with it) — and it does not indicate any fundamental disagreement with the five justices in the majority about the need to protect civil liberties even in a time of emergency.
Perhaps Chief Justice Roberts and Justice Breyer believed that Governor Cuomo and government officials around the country will read the court’s opinions and recognize that it is time to bury the meat cleaver and begin to regulate constitutional freedoms with a scalpel — without the need for a judicial order.
That message is lost if the case is seen as the mere product of Justice Amy Coney Barrett’s arrival at the Supreme Court. With the presidential election behind us, the balance between Covid-19 precautions and civil liberties no longer needs to be a partisan issue. The right to exercise religion in accordance with conscience is one of the most important in the Bill of Rights, and it is time for mayors and governors — and courts — to treat it that way.
Michael W. McConnell, a former federal judge, is now a law professor and director of the Constitutional Law Center at Stanford Law School. Max Raskin (@maxraskin) is an adjunct professor of law at New York University.
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