On Wednesday, the U.S. Supreme Court temporarily blocked enforcement of New York state restrictions on places of worship that were meant to help thwart the spread of COVID-19. With the restrictions in place, gatherings at houses of worship in so-called “red zones” were limited to 10 people, gatherings in “orange zones” were limited to 25 people, and gatherings in “yellow zones” were capped at 50 percent of the building’s capacity. “Red zones” were identified based on documented clusters of COVID-19 cases. In a dissent, Justice Sonia Sotomayor, one of three liberals on the court, shredded the majority’s opinion in this New York case.
Justice Elena Kagan joined Sotomayor’s dissent. Sotomayor wrote, in part, as follows:
‘Amidst a pandemic that has already claimed over a quarter million American lives, the Court today enjoins one of New York’s public health measures aimed at containing the spread of COVID-19 in areas facing the most severe outbreaks… I fear that granting applications such as the one filed by the Roman Catholic Diocese of Brooklyn (Diocese) will only exacerbate the nation’s suffering… Justices of this Court play a deadly game in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.’
By 5-4 votes (with Justice Barrett in the majority and the Chief dissenting) #SCOTUS has enjoined NY’s limits on in-person religious services pending appeals by Catholic and Jewish houses of worship:https://t.co/3JCttByeDs
Justice Sotomayor’s dissent gets right to the point: pic.twitter.com/5bJeCoCgFA
— Steve Vladeck (@steve_vladeck) November 26, 2020
The Supreme Court had previously faced two cases in which religious interests challenged authorities over gathering restrictions. In both of those cases, the court did not overrule local public health guidelines. In this case, in her dissent, Sotomayor insisted that the principles of free exercise of religion that plaintiffs have turned to in their challenges against gathering restrictions simply “are not at stake today.” Overall, religious institutions have not been singled out for special treatment amidst a nationwide patchwork of restrictions intended to curb the spread of COVID-19. No matter potential individual cases of different approaches to religious institutions versus secular establishments, across the pandemic, restrictions have affected many walks of life.
As Sotomayor put it:
‘Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives… New York’s COVID-19 restrictions do just that.’
Judge Kagan doesn’t normally join Justice Sotomayor’s blazing dissents, which were often solo or joined by Justice Ruth Bader Ginsburg.
She does so here, which marks a shift for her. The two New Yorkers on the Supreme Court, one Jewish and the other Catholic, find common ground: pic.twitter.com/kG5YIw4XH4
— Cristian Farias (@cristianafarias) November 26, 2020