In a midnight per curiam opinion that generated several concurring and dissenting opinions, the Supreme Court recently enjoined the state of New York from enforcing certain COVID-19 restrictions against religious institutions.  Although the injunction is limited to the pendency of the underlying appeal in the Second Circuit, it represents the Court’s most thorough treatment of pandemic-related restrictions on religious exercise to date.  It also marks an about-face from Chief Justice Roberts’  solo concurrence to the Court’s denial of a similar application for injunctive relief earlier this year.  In May, the Chief Justice deferred to the coordinate branches in dealing with the pandemic.  Now, however, the full Court has grown more skeptical of pandemic restrictions affecting religious exercise, and lower courts will probably follow suit.

The facts are as follows:  New York has adopted a tiered system of pandemic restrictions.  The state applies those restrictions to a number of geographic districts based on the severity of the pandemic in those districts.  Restrictions for a “red zone” are more severe than those for a “yellow zone” and so on.  New York’s regulations also distinguish between “essential” and non-essential business, and further identify religious institutions among the various uses regulated.  Religious institutions are not an “essential” use, though they receive preferential treatment relative to other large, indoor gatherings.  In “red zones” no more than ten people may attend each religious service.  In “orange zones,” the regulations cap attendance at twenty-five, irrespective of building capacity.  “Essential” businesses, which include acupuncture clinics and liquor stores, face no such capacity restrictions.

The per curiam opinion (which legal writing analysts believe was authored by the Associate Justice Amy Coney Barrett) took issue with religious institutions’ “non-essential” classification.  Citing its 1993 decision in Church of Lukumi Babalu Aye, Inc. v. Hialeah, the Court concluded New York’s restrictions violated “the minimum requirement of neutrality” to religion and appeared to target religious exercise.  The Court also characterized the restrictions as singling out religious institutions for different and “especially harsh” treatment with “troubling results”—namely that essential businesses could receive hundreds of customers per day, while a nearby church or synagogue would be limited to just ten or twenty-five people for a worship service.

After concluding New York’s restrictions were not neutral and of general applicability, the Court also concluded they were unlikely to survive strict scrutiny.  The Court reasoned that the government holds a compelling interest in combatting the pandemic.  But its chosen restrictions, which limited churches with capacities in the hundreds to just a handful of attendees, were not narrowly tailored to advanced that interest.  “It is hard to believe,” the Court stated, “that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other activities that the State allows.”

Considering the other factors for granting injunctive relief, the Court concluded that enforcing the restrictions would cause irreparable harm and that staying enforcement would not harm the public interest.

In a fiery concurrence, Justice Gorsuch argued, “Government is not free to disregard the First Amendment in times of crisis” and targeted Chief Justice Roberts’ South Bay concurrence as abdicating the Court’s responsibility to uphold the Constitution.  Neither the Court’s turn-of-the-20th-century decision in Jacobson v. Massachusetts, nor the state’s subsequent decision to lower the plaintiff’s district into the less restrictive “yellow zone,” he asserted, could save New York’s decision to limit religious exercise while freeing folks to buy bikes and beer.

Taking a more conciliatory tack, Justice Kavanaugh concurred.  He explained that New York, having distinguished between religious and secular institutions, was required to justify its decision.  Its restrictions were much more severe than others the Court had considered, and the state had not adequately supported them.

Chief Justice Roberts dissented, arguing that New York had already relaxed the challenged restrictions and defending (with unconcealed irritation) his earlier South Bay concurrence against Justice Gorsuch’s attack.  The other dissenting justices, Breyer, Sotomayor, and Kagan, variously wrote to explain that (1) religious worship services pose unique risks requiring regulations inapplicable to brief encounters in a store and (2) New York’s decision to single out religious exercise was actually a decision to offer that exercise preferential treatment vis-à-vis other large gatherings.  The dissents also noted that courts ought to defer to the state officials charged with addressing the pandemic.

While we don’t often weigh in on the merits of a decision, at least one element of this one deserves special note:  the Court didn’t consider New York’s restrictions “neutral” and of “general applicability” even though they applied equally to similar secular activities (e.g., large gatherings).  That strikes us as a departure from the Court’s long-held rule announced in Employment Division v. Smith that subjects neutral, generally applicable regulations to rational basis review.  Perhaps, the Court is looking to treat religious classifications in the same way it treats racial classifications—that is, the mere presence of the classification warrants strict scrutiny.  The government, the thinking might go, doesn’t deserve any deference when it calls out race, or religion, by name.

It’s of course also possible that Roman Catholic Diocese represents an unremarkable application of the Smith test, and the majority concluded only that treating worship more harshly than purportedly “essential” businesses failed the test.  But we sense a possible shift looming in this brief opinion and will continue to follow the Court’s actions.

Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ____ (U.S. Nov. 25, 2020)