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
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