This blog was originally published on December 7, 2020, and updated on December 18, 2020.
On Thanksgiving Eve 2020, the U.S. Supreme Court gave the Roman Catholic Diocese of Brooklyn and its co-Plaintiff, Agudath Israel of America, something for which to be thankful. The Court granted temporary injunctive relief to these religious organizations, refusing to uphold a New York State Executive Order that imposed attendance restrictions on religious services. In Diocese of Brooklyn v. Cuomo, the Court rejected the constitutionality of New York’s Order limiting attendance at religious services in COVID-related “red zones” within the State to no more than ten persons and, in “orange zones,” to no more than twenty-five people. A full evidentiary hearing is scheduled for later this month. Additionally, the Supreme Court just recently issued an Order casting doubt on California’s current wholesale ban on in-person religious gatherings. These significant religious liberty victories illustrate a possible Court shift as well as the judiciary’s ongoing struggle with the principles of religious freedom, against the backdrop of pandemic-related executive orders.
Majority - Plaintiffs Have Established the Requirements for an Injunction
The majority “per curiam” opinion held that New York’s Executive Order likely violated the Free Exercise Clause of the First Amendment by treating religious expression less favorably than comparable secular activity. New York’s Order restricts attendance at worship services in “red zones” within New York State to a maximum of ten people while imposing no restrictions on attendance at similarly located secular facilities such as acupuncture centers, liquor stores, and bicycle shops. In “orange zones,” the Order restricts attendance at houses of worship to twenty-five people, but non-essential businesses are unrestricted in the number of potential attendees. The Court ruled that these underlying facts gave the Plaintiffs a “likelihood of success on the merits.” This element is the first requirement for granting injunctive relief.
The Court similarly held that the Plaintiffs met the second requirement – irreparable harm. The Court sympathized with the challenges and insufficiency of “remote worship”, stating, “while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance.” This finding represents the first time during the current pandemic that a Court majority has acknowledged that congregants’ inability to gather in person constitutes “irreparable harm” justifying injunctive relief. Such recognition affirms a similarly recent federal judicial ruling in the D.C. District Court, upholding congregants’ right to worship in person, equal to secular groups’ legal right to gather together.
The Plaintiffs also met the third injunctive requirement – the public interest. New York failed to show that striking down the Order as invalid would harm the public, particularly through its failure to claim (or otherwise demonstrate) that public health would be compromised if the government employed lesser restrictions.
Concurring and Dissenting Opinions Illustrate Continuing Fault Lines
In addition to the per curiam opinion, the Justices filed two concurrences (Justices Gorsuch and Kavanaugh) and three dissents (Justices Roberts, Breyer, and Sotomayor). These opinions, and the dissents in particular, illustrate the fault lines within the Court with respect to religious free exercise and state administrative power.
As with other constitutional cases, the legal “standard of review” chosen by the Court heavily influences (if not dictates) the outcome. The per curiam opinion held that “strict scrutiny” applied because the executive order being reviewed was not “neutral” and of “general applicability.” Strict scrutiny requires that a law or ordinance be “narrowly tailored” to serve a “compelling state interest,” which is a challenging requirement to meet. Here, a majority of Justices found that New York’s Order treated religious expression less favorably than comparable secular activity – that is, the Order was not neutral. Rather, the Order singled out places of worship for exceptionally tight restrictions while allowing activities like acupuncture and the sale of liquor to proceed unabated.
The dissenting Justices generally disagreed with the majority’s analysis. Quoting the District Court decision in the case, Justice Breyer argued that New York’s Order treats religious gatherings more favorably than similar gatherings such as public lectures and concerts, which the Order prohibits completely. Justice Sotomayor agreed, arguing that New York applies similar or more severe restrictions to secular gatherings “where large groups of people gather in close proximity for extended periods.” Based on the above factors, these Justices viewed the Order as “neutral” – treating religion and non-religion alike – and therefore applied the more lenient standard of “rational basis.” Under this standard, the government must only offer a rational (reasonable) basis for its action, in furtherance of a legitimate state interest. This standard is generally met, as the dissenting Justices asserted here. The dissenters were also more deferential to government authority and expertise based on “the public’s serious health and safety needs, which call for swift government action”, and government’s ability to “marshal scientific expertise and craft specific policies in response to ‘changing facts on the ground.’” (Justice Breyer, dissenting).
Which One of These is Not Like the Other?
Diocese of Brooklyn is similar to two other recent U.S. Supreme Court cases, South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak. Both cases challenged state COVID restrictions (in California and Nevada, respectively) with the Court ruling for the States in both cases. There are at least two, possibly three, notable differences between Diocese of Brooklyn and these two cases. First, the provisions at issue in California and Nevada’s COVID orders were arguably less restrictive than those contained in New York’s Executive Order. California’s order allowed up to 100 people or 25% of capacity for religious services and Nevada’s allowed up to 50 people. Second, the makeup of the Court has changed with Justice Amy Coney Barrett replacing Justice Ginsburg in October. South Bay and Calvary Chapel were both 5-4 decisions with Justices Roberts and Ginsburg joining the majority. Diocese of Brooklyn is also a 5-4 decision but with Justice Barrett joining the majority and Justice Roberts the minority. Notably, however, the Court did not overrule (or signal eventual overrule) of the two previous cases but instead generally indicated their precedential standing.
Finally, something else has changed since the earlier rulings, namely, the passage of time. Diocese of Brooklyn appears to illustrate the Court’s growing reluctance to continue deferring to executive branch authority over the course of this long pandemic. As Justice Gorsuch pithily stated, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” Justice Roberts, concurring in South Bay, expressed willingness to defer to State executive orders in the pandemic’s early stages. Such judicial deference seems to be growing thinner as the Court more closely scrutinizies State action, which increasingly loses its “emergency” qualification as the nation absorbs and adapts to coronavirus risks.
Enter Harvest Rock Church and California’s COVID Restrictions on Worship
Reflecting the swift precedential impact of Diocese of Brooklyn, the Court just gave another church a partial victory in its efforts to hold in-person services. On December 3, the Supreme Court issued a two-sentence order rejecting the lower court’s denial of Harvest Rock Church’s injunctive request and sending the case back to the lower court “for further consideration in light of Roman Catholic Diocese of Brooklyn v. Cuomo.”
Harvest Rock Church is a California church with multiple campuses across the state. Harvest Rock sued the Governor of California, requesting an injunction against the State’s current “Blueprint for a Safer Economy” meeting restrictions. California’s “Blueprint” divides counties in the State into four tiers, including Tier 1 that includes 41 counties and 94% of California’s population, and where in-person indoor worship services are completely prohibited. After the district court and Court of Appeals denied Harvest Rock’s request for injunction, the Supreme Court vacated the lower court decision, sending the case back to the district court to reconsider. Although not a final decision on the merits, this judicial remand signifies Diocese of Brooklyn’s importance and a potential final decision in Harvest Rock’s favor.
The Ripple Effect Continues...
Diocese of Brooklyn continues to significantly impact cases challenging state COVID-related attendance restrictions. During the week of December 14, 2020, the Court issued two summary orders supportive of churches’ and their religious leaders’ First Amendment freedom of assembly and religion claims in New Jersey and Colorado. In both cases, Robinson v. Governor of New Jersey and High Plains Harvest Church v. Governor of Colorado. the plaintiffs requested injunctive relief against enforcement of State-issued COVID restrictions, seeking to carry on with desired worship activities. After losing in lower courts, the plaintiffs appealed to the U.S. Supreme Court, which then vacated the lower court decisions and directed the courts reconsider “in light of Roman Catholic Diocese of Brooklyn v. Cuomo.”
Takeaways for Houses of Worship
On the practical side, and in addition to being welcome news for champions of religious freedom, Diocese of Brooklyn (as well as the Court’s late-breaking Order in Harvest Rock) suggests some new parameters for judging (and potentially challenging) state COVID restrictions. Executive Orders that treat religion less favorably than comparable secular activities are constitutionally suspect, and the Court has signaled it will broadly interpret what “neutrality” toward religion requires. Equally important, the Court has acknowledged that prohibiting or severely restricting in-person worship attendance constitutes “irreparable harm” to religious adherents. This provides strong grounds for houses of worship and their attendees to challenge government action that restricts such attendance and signals to lower courts that refusal to acknowledge its importance may result in overruling.
Although the landscape and extent of the free exercise of religion during these challenging times will remain a subject of debate and disagreement, even within the Supreme Court, Diocese of Brooklyn provides some clarity and welcome news for houses of worship and their attendees as they look to their faith and religious communities for strength and stability during the ongoing pandemic.
 Per curiam “by the court” opinions are unanimous decisions by all Justices or by a majority of Justices, and such opinions are unsigned.
 Justice Roberts dissented on different grounds, judging that New York’s lifting of the “orange” and “red” zones that limited the Plaintiffs’ ability to meet obviated the need for an injunction.
 None of the dissenting Justices explicitly applied the “rational basis” standard. Rather, they applied it implicitly and by default.
 The dissenters claim that New York’s Order is less restrictive because it allows houses of worship to meet while requiring secular venues such as movie theaters and sporting arenas to close entirely. (See Justice Sotomayor’s dissent).