On November 26, 2020, the U.S. Supreme Court in Roman Catholic Diocese of Brooklyn v. Andrew Cuomo issued an emergency injunction putting an halt, pending further appeals, of NY Gov. Andrew Cuomo’s discriminatory lockdown rules.

We reported, Huge Religious Liberty Win At SCOTUS Rejecting NY Lockdowns – What a difference a Barrett makes:

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.

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.

A similar case out of California also sought an injunction from the Supreme Court, after being denied relief by lower courts. You can read the Emergency Application here (emphasis in original):

Pursuant to Sup. Ct. Rules 20, 22 and 23 and 28 U.S.C. §1651, Applicants Harvest Rock Church, Inc. and Harvest International Ministry, Inc. (collectively “Churches”), herby move for an emergency writ of injunction before Sunday, November 29, 2020 against Governor Newsom’s Emergency Proclamation and subsequently issued stay-at-home orders, including the currently operative “Blueprint for a Safer Economy” (the “Blueprint”), which establishes a statewide framework of four Tiers with sector-specific restrictions in each tier and imposes an unconstitutionally discriminatory regime that relegates Churches’ fundamental right to religious exercise to constitutional orphan status….

For over nine months, the Governor has continued to discriminate against Churches’ religious worship services while permitting myriad nonreligious entities to continue to gather without numerical restrictions inside the same house of worship and in other external comparable congregate assemblies; publicly encouraging and supporting mass protestors, rioters, and looters to gather without numerical restriction in blatant disregard for his own Orders; and has purported to prohibit religious worship services – even in the private homes of Californians – despite the fundamental protections enshrined in the First Amendment.

The Supreme Court issued an Order today vacating a lower court denial of injunctive relief and sending the case back down for reconsideration in light of the Catholic Dicese ruling:

20A94 HARVEST ROCK CHURCH, ET AL. V. NEWSOM, GOV. OF CA

The application for injunctive relief, presented to Justice Kagan and by her referred to the Court, is treated as a petition for a writ of certiorari before judgment, and the petition is granted. The September 2 order of the United States District Court for the Central District of California is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to remand to the District Court for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020).

There were no dissents from the Order, reflecting that the fight has been won by the 5-4 majority in the Diocese of Brooklyn case.

 

 
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