Late last night, after I had gone to sleep, two things happened to ensure that I would not be able to take this morning off. First, Sidney Powell released her “Kraken” (more on that later), and second, the United States Supreme Court in a 5-4 decision handed down a huge religious liberty win against Andrew “Killer” Cuomo’s lockdown restrictions on religious groups.

Remember, last May, when the Supreme Court rejected a request for relief involving California lockdown rules that singled out religious groups for more harsh treatment. We covered it, SCOTUS: Roberts Joins Liberals To Reject Injunction in California Religious Discrimination Lockdown:

The Supreme Court has handed petty tyrants throughout the land license to discriminate against religious groups in ordering pandemic lockdowns and restrictions. From this point forward an argument that had succeeded in many lower courts will hold no sway.

That argument ran something like this: Religious groups should not be subjected to more harsh treatment than similarly situated secular groups. So you can’t ban drive-up church services if you don’t ban drive-up secular services such as fast food restaurants and liquor stores. If a religious group practiced the same ‘social distancing’ and other safety practices as others, then the First Amendment prevented states and cities from treating religious groups differently.

The Supreme Court issued an Order just before midnight last night in a California case seeking an emergency injunction. We discussed the California case and an Illinois case in  Religious Liberty Lockdown Cases Reach SCOTUS.

The Illinois case was resolved when the state allowed the additional restrictions on churches to lapse, SCOTUS Denies Emergency Injunction After Illinois Agrees “Religious Gatherings will no Longer be Subject to Mandatory Restrictions”.

In the California case, the Court denied an injunction in an Order without opinion, with the four conservative justices (Alito, Thomas, Gorsuch, Kavanaugh) stating they would have granted the injunction. Chief Justice Roberts was part of the majority rejecting the injunction, and wrote a concurring opinion explaining his reasoning. The short version is that this is a pandemic and the courts shouldn’t second-guess politicians….

The same thing happened again in July, SCOTUS: Roberts joins liberals again to deny religious protection from discriminatory coronavirus lockdown:

Last night, Supreme Court Chief Justice John Roberts joined the four liberal justices to deny injunctive relief to a church in Nevada which claimed that lockdown rules discriminated against religious groups, allowing much more lenient reopening for secular businesses such as casinos.

Then two things changed: Ruth Bader Ginsburg died, and Amy Coney Barrett was confirmed to fill the vacancy. We all wondered whether this would remove Roberts as the swing vote. On religious liberty cases, it appears so.

The Supreme Court Order addressed restrictions imposed by Cuomo that more harshly targeted the orthodox Jewish community, a frequent target of Cuomo and NYC Mayor Bill de Blasio.

The Order was “per curiam,” meaning no single author, but from the dissenting opinions we can see the 5-4 split.

Here’s the top line verdict granting injunctive relief pending appeal:

The application for injunctive relief presented to JUSTICE BREYER and by him referred to the Court is granted. Respondent is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

Here’s some detail on the restrictions, and comments from Cuomo that contributed to the result, from the majority opinion:

This emergency application and another, Agudath Israel of America, et al. v. Cuomo, No. 20A90, present the same issue, and this opinion addresses both cases. Both applications seek relief from an Executive Order issued by the Governor of New York that imposes very severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. The two applications, one filed by the Roman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated entities, contend that these restrictions violate the Free Exercise Clause of the First Amendment, and they ask us to enjoin enforcement of the restrictions while they pursue appellate review. Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.

The majority found a clear First Amendment violation:

The applicants have clearly established their entitlement to relief pending appellate review. 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….

But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.1

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026. The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

These categorizations lead to troubling results. At the hearing in the District Court, a health department official testified about a large store in Brooklyn that could “literally have hundreds of people shopping there on any given day.” App. to Application in No. 20A87, Exh. D, p. 83. Yet a nearby church or synagogue would be prohibited from allowing more than 10 or 25 people inside for a worship service. And the Governor has stated that factories and schools have contributed to the spread of COVID–19, id., Exh. H, at 3; App. to Application in No. 20A90, pp. 98, 100, but they are treated less harshly than the Diocese’s churches and Agudath Israel’s synagogues, which have admirable safety records.

The majority tried to distinguish these restriction as more harsh than in the prior cases:

Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.” They are far more restrictive than any COVID–related regulations that have previously come before the Court,2 much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.

The majority also rejected claims that the case was moot because Cuomo had modified the restrictions:

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. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.

The dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants may hold services at 50% of their maximum occupancy. The dissents would deny relief at this time but allow the Diocese and Agudath Israel to renew their requests if this recent reclassification is reversed.

There is no justification for that proposed course of action. It is clear that this matter is not moot…. And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange….

While we could presumably act more swiftly in the future, there is no guarantee that we could provide relief before another weekend passes. The applicants have made the showing needed to obtain relief, and there is no reason why they should bear the risk of suffering further irreparable harm in the event of another reclassification. For these reasons, we hold that enforcement of the Governor’s severe restrictions on the applicants’ religious services must be enjoined.

Gorsuch wrote a separate concurring opinion:

As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

In what appears to be swipe at Roberts, Gorsuch rejected the notion that the Court needs to “stay out of the way” on government restrictions on religious liberty in time of pandemic:

Why have some mistaken this Court’s modest decision in Jacobson [v. Massachusetts] for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do….

It is easy enough to say it would be a small thing to require the parties to “refile their applications” later. Post, at 3 (opinion of BREYER, J.). But none of us are rabbis wondering whether future services will be disrupted as the High Holy Days were, or priests preparing for Christmas. Nor may we discount the burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services. Whether this Court could decide a renewed application promptly is beside the point. The parties before us have already shown their entitlement to relief. Saying so now will establish clear legal rules and enable both sides to put their energy to productive use, rather than devoting it to endless emergency litigation. Saying so now will dispel, as well, misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long. It is time—past time—to make plain that, while the pandemic poses many grave challenges, 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.

Kavanaugh also wrote a separate concurring opinion:

To be clear, the COVID–19 pandemic remains extraordinarily serious and deadly. And at least until vaccines are readily available, the situation may get worse in many parts of the United States. The Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States.” South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring in denial of application for injunctive relief ) (slip op., at 2) (internal quotation marks and alteration omitted). Federal courts therefore must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic. See ibid. But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions ofreligious discrimination, racial discrimination, free speech, or the like are raised.

Roberts wrote his own Dissent, arguing the case was moot:

I would not grant injunctive relief under the present circumstances. There is simply no need to do so. After the Diocese and Agudath Israel filed their applications, the Governor revised the designations of the affected areas. None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions. At these locations, the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief they currently seek….

The Governor might reinstate the restrictions. But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things now stand, however, the applicants have not demonstrated their entitlement to “the extraordinary remedy of injunction.”

In what may be a sign of conflict to come now that Roberts is not the swing vote, Roberts also took offense to his majority colleagues veiled swipes:

To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.

One solo concurrence today takes aim at my concurring opinion in South Bay. See ante, at 3–6 (opinion of GORSUCH, J.)…. It is not clear which part of this lone quotation today’s concurrence finds so discomfiting. The concurrence speculates that there is so much more to the sentence than meets the eye, invoking—among other interpretive tools—the new “first case cited” rule. But the actual proposition asserted should be uncontroversial, and the concurrence must reach beyond the words themselves to find the target it is looking for.

Breyer, joined by Sotomayor and Kagan, wrote a dissent. Sotomayor also wrote a separate dissent joined by Kagan.  Blah, Blah, Blah, go read them yourself.

What a difference having Barrett on the court makes. How good a decision it was to get the confirmation done before the election.

 

 
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