It didn’t take long for the newest Supreme Court Justice to confirm that the balance of the court has shifted radically to the right.
With Justice Amy Coney Barrett providing the decisive vote, the Supreme Court voted 5-4 on Wednesday to grant stays to the Catholic Diocese of Brooklyn and an Orthodox Jewish group and two synagogues in their challenges to New York Gov. Andrew Cuomo’s occupancy limits on religious services.
The groups are challenging Cuomo’s public health orders limiting services to 25 people in areas hard-hit by the pandemic (“orange zones”) and 10 people in areas with the most severe outbreaks (“red zones”). In its unsigned decision, the Court indicated it would ultimately strike down the public health measures for good. New York has since eased restrictions on the affected areas since the challenges were filed.
“The applicants have clearly established their entitlement to relief pending appellate review,” the ruling said. “They have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.”
Earlier this year, when the late Justice Ruth Bader Ginsburg was on the Court, it ruled twice against challenges by churches in California (in May) and Nevada (in July) to public health orders limiting attendance. But with Ginsburg’s death and her replacement by Barrett, a conservative Catholic, the decision this time went the other way.
In concurrences, Justices Neil Gorsuch and Brett Kavanaugh argued that the restrictions in New York were more discriminatory than those in Nevada and California, which they also voted against.
“New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, and much more severe than the restrictions that most other states are imposing on attendance at religious services,” Kavanaugh wrote. “And New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.”
“It is time—past time—to make plain that, while the pandemic poses many grave challenges,” Gorsuch wrote, “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.”
Chief Justice John Roberts, a conservative who provided the deciding vote in the earlier two cases, wrote a dissent, as did liberal Justices Sonia Sotomayor and Stephen Breyer. In Roberts’ dissent, the chief justice argued that Cuomo taking the areas out of the zones in question meant there was “simply no need” for the court to grant a stay against the orders.
Sotomayor argued that the Court was infringing on the rights of state and local officials to protect their citizens.
“The Constitution does not forbid states from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives,” she wrote. “Because New York’s COVID-19 restrictions do just that, I respectfully dissent.”