Policy Summary: In response to the COVID-19 pandemic Governor Andrew Cuomo of the State of New York enacted regulations that allowed him to identify “hot spots” of COVID-19 activity and to designate areas according to a color – coded scheme. Each colored zone would correspond to a level of restrictions that were designed to limit the number of persons in a gathering, among other restrictions, due to COVID-19. Red zones have the strictest restrictions on the gathering of people and operations of commercial businesses. Areas classified as orange would be areas immediately surrounding red zones and have a less limited tier of restrictions. And yellow zones would be the outlying areas of red zones and have the least strict restrictions.

The Roman Catholic Diocese of Brooklyn and Agudath Israel of America brought a lawsuit in Federal District Court arguing that the limitations of 10 people in red zones and 25 people in yellow zones for houses of worship were violations of the First Amendment’s Free Exercise Clause and asked for a preliminary injunction against the State from enforcing these COVID-19 based restrictions. The Federal District Court ruled against the houses of worship and the case was appealed to the Court of Appeals for the Second Circuit which denied the petitioners request to issue an injunction. The case was appealed to the Supreme Court which issued an unsigned majority opinion issuing an injunction against the State of New York from enforcing the maximum persons regulations. While the majority opinion was unsigned six written opinions total were issued from the case (the majority opinion, three concurring plus two dissenting opinions). LEARN MORE

Policy Analysis: While this case was technically a procedural case which was to decide whether a temporary injunction should be issued, the discussion of religious freedom and liberties emerged front and center and it revealed how cases on religion in the future might go at the High Court.

The dissenting opinion penned by Justice Stephen Breyer emphasizes forcefully that the deadly nature of COVID-19, the current spike in infections and the uncertainty caused by this pandemic are serious health considerations that needed immediate attention which in turn led to the color – coded regulations imposed by Governor Cuomo. This was not an assault on the Constitution or First Amendment rights as Justice Gorsuch implied but an attempt to save as many lives as possible which Chief Justice Roberts recognized when he said his dissenting colleagues “simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”

Yet the concurring opinions of Justices Gorsuch and Kavanaugh signal an approach to First Amendment religion cases that could be troubling down the road. Both Justices view the free exercise of religion as a highly cherished right, as well they should, but they also showed they are reluctant to side against religion even if the exercise of religion might lead to harm to outside third parties. If they are unwilling to uphold limited restrictions and limitations to save human lives in this case then it seems likely that they will side with religion again in highly contested freedom of religion cases. Objections to act or perform duties based on religious beliefs have been used in cases to deny marriage licenses to gay couples, to deny health care services to patients, to discriminate against foster parents and potential adoptions and to even deny contraception in health insurance benefits. If a deadly virus is not enough to convince justices that limited restrictions and limitations are necessary in a situation in New York than it seems likely that these justices will mostly favor religion when it comes to the religious freedom vs. do not harm third parties debate. With this case, that seems like the direction the Supreme Court will be headed especially with a new conservative and deeply religious justice – Amy Coney Barrett – recently installed. LEARN MORE, LEARN MORE 

Engagement Resources:

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.

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