(Bloomberg) — A sharply divided U.S. Supreme Court blocked New York Governor Andrew Cuomo from reimposing strict capacity limits on New York City synagogues and Roman Catholic churches, saying rules he issued amid a new Covid-19 wave unfairly single out houses of worship.
With Justice Amy Coney Barrett joining the conservative wing in the majority, the court voted 5-4 in a pair of cases to bar Cuomo from enforcing his Oct. 6 “Cluster Initiative” against houses of worship that sued to challenge the restrictions. The initiative was aimed at stemming the outbreak in areas of Brooklyn and Queens that were experiencing a surge in cases.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” the majority said an unsigned opinion issued just before midnight Wednesday. “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.”
The orders underscore the impact of Barrett’s confirmation last month to succeed the late Justice Ruth Bader Ginsburg. The court with Ginsburg had been reluctant to second-guess state and local officials on efforts to slow the spread of Covid-19, even when religious rights were at issue.
Chief Justice John Roberts joined the court’s three liberals in dissent. There was “no need” for the court to act, he wrote, given that the suing synagogues and churches all can now hold services at 50% capacity.
“The governor might reinstate the restrictions. But he also might not,” Roberts wrote. “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.”
In a separate dissent, Justice Sonia Sotomayor said New York actually was giving houses of worship “preferential treatment” relative to comparable secular activities like movies and spectator sports. Justices Stephen Breyer and Elena Kagan also dissented.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh joined Barrett in the majority. The orders apply until the justices resolve the appeals the churches and synagogues have promised to file.
Cuomo told reporters on a call Thursday that the ruling “was really just an opportunity for the court to express its philosophy and politics.”
Video: Supreme Court blocks New York Covid-19 restrictions on houses of worship (MSNBC)
Many of the affected areas have large populations of Orthodox Jews, and two synagogues and a nationwide Orthodox umbrella group said the governor was unconstitutionally singling out their religion. In a separate filing, the Catholic Diocese of Brooklyn said churches were being subjected to tighter capacity restrictions than neighboring stores and offices.
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The Supreme Court majority said the rules “single out houses of worship for especially harsh treatment” by imposing tighter restrictions on them than on, for example, acupuncture facilities and garages.
The immediate effect is likely to be limited. New York officials say all the affected areas have been converted to “yellow zones,” where houses of worship aren’t subject to any additional limits under the Cluster Initiative. Some of the areas had previously been classified as “red zones,” where churches and synagogues are limited to the lesser of 25% of capacity or 10 people.
“It’s irrelevant from any practical impact because the zone that they were talking about has already been moot,” Cuomo said on Thursday, noting that broader gathering limits were still in place.
The synagogues — Agudath Israel of Kew Garden Hills in Queens, and Agudath Israel of Madison in Brooklyn — faulted Cuomo for singling out their faith in press conferences and interviews. In an Oct. 9 interview on CNN, Cuomo said the coronavirus resurgence at the time was “predominantly an ultra-Orthodox cluster.” Since then a jump in Covid-19 cases in New York has become more widespread.
“This court should not permit such remarkable scapegoating of a religious minority to stand,” the synagogues and a national umbrella organization, Agudath Israel of America, argued in court papers.
New York officials argued that Cuomo “made clear that the order did not target any gatherings because of their religious nature, but, rather, the documented fact of their Covid-19 super-spreader potential.”
President Donald Trump on Saturday added the message “HAPPY THANKSGIVING” to a retweet about the ruling, minutes after arriving at his Virginia golf club.
The cases are Roman Catholic Diocese of Brooklyn v. Cuomo, 20A87, and Agudath Israel v. Cuomo, 20A90.
(Updates with reaction from Cuomo, Trump starting in ninth paragraph)
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