UPDATE Nov. 26, 2020: The Supreme Court’s new conservative majority late on Nov. 25 sided with religious organizations in New York that said they were illegally targeted by pandemic-related restrictions imposed by Gov. Andrew M. Cuomo to combat spiking coronavirus cases.
Now that devoutly Catholic Amy Coney Barrett has become the fifth conservative Justice, a flurry of lawsuits is aiming their sights on the Supreme Court.
The Roman Catholic Diocese of Brooklyn asked the Court to block Governor Andrew Cuomo’s October 2 order restraining worship in Coronavirus hotspots.
The church’s lawsuit, Roman Catholic Diocese of Brooklyn, New York v. Cuomo, argues that strict limits violate the Constitution’s Free Exercise Clause. On November 2, it requested an immediate injunction against Cuomo.
Earlier, a petition from two Orthodox Jewish groups to open synagogues during the fall High Holy Days was denied by the federal district court in Eastern New York.
And a church in rural Nevada has asked the Supreme Court to revisit a case it turned down last summer in a 5-4 majority with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissenting.
The church, Calvary Chapel Dayton Valley, challenges the COVID-19 shutdown order issued by the state’s Democratic Governor, Steve Sisolak. The order discriminates against places of worship, the church argued, because it limits services there to a maximum of 50 people while allowing casinos, gyms, bars, and restaurants to operate at 50% of capacity, Amy Howe of the SCOTUS Blog reported.
“In a dissenting opinion joined by Thomas and Kavanaugh, Alito wrote that the Supreme Court’s “willingness to slow such discrimination is disappointing.”
For months now, Howe writes, Alito has argued that state and local governments have “responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion.”
Hasidic Jews holding super spreader events
Governor Cuomo’s October 2 executive order restricts religious services to 10 people in what Cuomo has designated as “Red Zones” in 20 zip codes where the virus is exploding.
In less dangerous “Yellow Zones” in Brooklyn, Queens, and Rockland County, Cuomo’s executive order limits religious gatherings to 25 people.
The ultra-Orthodox suit claims they were “scapegoated” by the Governor for their religious beliefs.
In truth, the Hasidic community had been hosting super spreader celebrations that have been driving the Coronavirus resurgence in New York.
The Brooklyn Diocese has been swept up in the restrictions, although the diocese churches are following Cuomo’s restrictions, including mask-wearing, downsizing attendance, and social distancing.
Cuomo could not target Hasidic Jews alone in his October 2 executive order.
He was forced to apply the stricter zoning rules to all religions, raising the hackles of the Brooklyn Catholic diocese.
“The state has completely disregarded the fact that our safety protocols have worked and it is an insult once again to penalize all those who have made the safe return to church work, Bishop Nicholas DiMarzio told his diocesan newspaper, The Tablet,” The HuffPost reports.
Cuomo’s attorneys argue that “the state’s limits on mass gatherings have consistently recognized that the risk of transmitting COVID-19 is much greater at gatherings where people arrive and depart at the same time and congregate and mingle for a communal activity over an extended period of time.”
Cuomo compares houses of worship to movie theaters and concerts.
Brooklyn case could be heard any day now
The Brooklyn case is expected to be heard by the Supreme Court within a week, The New York Times’ Adam Liptak wrote on November 16, as Brooklyn has tried its case in both Federal district court and in the U.S Court of Appeals for the 2nd Circuit.
The 2-1 Second Circuit ruling (with a Trump judge dissenting) drew on Chief Justice John Roberts’ concurring opinion in a California case struck down in a 5-4 ruling, Liptak writes.
Justice Roberts (a Catholic) believes “officials charged with protecting the public should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
The case was sent to Justice Stephen Breyer, who is addressing Second Circuit Court requests.
Justice Breyer ordered Governor Cuomo to file a response to the Brooklyn Catholic diocese by Wednesday, November 18, at 2 PM.
Cuomo argued in his brief filed last Wednesday, that rather than treating religious venues more harshly than secular venues, New York’s Coronavirus restrictions are more lenient to houses of worship than they are to businesses.
The Brooklyn church argues that secular businesses are favored over churches as “everything from supermarkets to pet stores” are open.
The health of the people should be the supreme law
Matt Ford’s article in The New Republic quotes John Fabian Witt, a Yale University law professor. He argues that conservative judges in lower courts are already breaking with 200 years of American legal thinking on epidemics and other public health crises.
Cicero wrote in AD 52 “Salus populi suprema lex”: The health of the people is the supreme law.”
Conservative justices vehemently disagree. Originalists all, they slavishly follow the dictates of 18-century law that states in the Free Exercise Clause of the Constitution, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
It would be truly apocalyptic to see Governors’ orders restricting church and synagogue attendance struck down by an anachronistic Court at a time when a crippling and lethal virus is setting records for U.S deaths.