When the Supreme Court blocked New York Governor Andrew Cuomo’s restrictions on religious services this week, it was the first time judges had enforced constitutional restrictions on the government’s response to the COVID-19 pandemic. The decision sparked predictably hyperbolic reactions from critics who believed politicians should be free to do whatever they think fit during a public health crisis.
New York Times columnist Paul Krugman called the court’s injunction in the Roman Catholic Diocese of Brooklyn against Cuomo “the first major decision by the Trump-filled court” and warned that “people will be killed.” He added, “The bad logic is evident. Suppose I am adhering to a religion whose rituals include introducing neurotoxins into public reservoirs. Does the principle of religious freedom give me the right to do so?” Krugman noted that “freedom of belief” does not include “the right to tangibly harm other people – which large gatherings definitely do in a pandemic”.
There are several problems with Krugman’s gloss on the case, starting with his understanding of the constitutional law involved. The Court applied the prohibition of the first amendment to laws “forbidding the free exercise of religion”, which includes both conduct and belief. Krugman is, of course, right that the free exercise clause is not a license to “introduce neurotoxins into public reservoirs” – or, to take a better-known example, conduct human sacrifice. However, it is hard to take seriously his suggestion that holding a church service during the COVID-19 pandemic, regardless of the protective measures observed, would poison the drinking water of millions of people.
According to Cuomo’s rules, “places of worship” in state-designated “red” zones were not allowed to accept more than 10 people. The upper limit in “orange” zones was 25. These restrictions applied regardless of the capacity of a building. For example, a 1,000-seat church would be limited to 1 percent of its capacity in a red zone and 2.5 percent of its capacity in an orange zone.
Cuomo’s restrictions on religious gatherings were much stricter than the rules on countless secular activities, which pose a similar risk for virus transmission. This point was crucial as the Court ruled that laws are likely to be unconstitutional if they discriminate against religion. At the same time, it states that the free exercise clause does not require religious exceptions to neutral, generally applicable laws, which would obviously contain laws prohibiting mass poisoning or murder.
It is undisputed that both the Diocese of Brooklyn and Agudath Israel, which Cuomo sued on behalf of the Orthodox synagogues they represented, followed strict COVID-19 security protocols, including face masks and physical distancing. It is also undisputed that no disease clusters have been tied to their facilities since their reopening. Plaintiffs did not want to go on as if COVID-19 did not exist. Instead, they argued that Cuomo’s policies selected places of worship for particularly harsh treatment and were not “tightly tailored” to serve the “imperative state interest” to contain the epidemic.
After these organizations filed their lawsuits, but before the Supreme Court considered their application for an injunction, Cuomo changed the color coding of the neighborhoods where their churches and synagogues are located. “None of the places of worship named in the motions are now subject to fixed numerical restrictions,” stated Chief Justice John Roberts in his dissenting opinion. “At these locations, applicants can provide services at up to 50% capacity, which is at least as cheap as the current relief.”
In other words, Cuomo suddenly increased the effective occupancy limit for a church with 1,000 seats by 50 times in the formerly red zones and by 20 times in the formerly orange zones. According to Krugman’s logic, the governor now allows such ruthless behavior as “throwing neurotoxins into public reservoirs”. However, this is the same man whose judgment we believe Krugman should unquestionably trust.
“The scary thing is that 5 members of the court seem to think they live in the Fox cinematic universe where actual facts about things like disease transmission don’t matter,” says Krugman. In this case, Cuomo himself appears to have succumbed to the same propaganda, as he concluded that his original rules were far more restrictive than necessary.
The New York Times reporter Adam Liptak suggests that the 5-4 ruling on this case, which depended on the replacement of Ruth Bader Ginsburg with the recently re-elected Amy Coney Barrett, reflects a new Conservative majority driven by political Considerations is driven. “Chief Justice Roberts is fundamentally conservative and his liberal voices have been rare,” Liptak writes. “But they reiterated his frequent statements that the court is not a political body. The court’s new and solid conservative majority could send a different message.”
However, regardless of their conclusions, the six statements made on Wednesday evening not only express political preferences or party political loyalties. They show the judges dealing with constitutional issues how to do it.
Was Cuomo’s policies neutral and generally applicable? The five judges in the majority did not believe that. The judges Sonia Sotomayor and Elena Kagan disagreed and argued that places of worship are not fundamentally similar to the many companies that Cuomo was allowed to operate without occupancy restrictions. Roberts argued that an injunction was unnecessary in view of Cuomo’s sudden reclassification of the relevant neighborhoods, but acknowledged that “the numerical capacity limits of 10 and 25 people, depending on the applicable zone, appear inappropriately restrictive” and “this may well be possible” be it that such restrictions violate the free exercise clause. “
Judge Stephen Breyer shared the difference. “Whether these small numbers are in breach of the Free Exercise Clause in the Constitution under the current circumstances is far from clear,” he wrote, “and I believe that such evidence must be provided by the applicants here to show that they are Have a right to the extraordinary. ” Remedial action. ‘”
In other words, while only five judges agreed that an injunction was appropriate, seven were willing to at least consider the possibility that Cuomo’s restrictions were unconstitutional. Perhaps this proposal has not turned out as critics like Krugman think.
Aside from the specific legal issues raised in this case, the broader question is whether a public health emergency makes constitutional restrictions optional. COVID-19 lockdowns, which blocked access to abortion by, for example, classifying it as a non-essential medical service, have been successfully challenged in several states. Does Krugman believe that these courts should show equal respect to politicians he deems appropriate when restrictions on religious freedom are challenged?
In an article published last July by the Harvard Law Review Forum, American University law professor Lindsay Wiley and University of Texas law professor Stephen Vladeck present a compelling case against the repeal of the usual standards of judicial practice Review during a crisis like the COVID-19 epidemic. They state that “the suspension principle is inextricably linked to the idea that a crisis is of limited and short duration”; it is therefore “unsuitable for long-term and open emergencies like the one we are currently in”. They add that “the suspension model is based on the often unfounded claim that the” normal “judicial review of government action in a crisis will be too rigorous” – a term that, given that “the principles of proportionality and of compensation are most modern seems to be wrong “Constitutional standards allow greater encroachment on civil liberties in times of greater communal needs. “
Wiley and Vladeck stress “the importance of an independent judiciary in a crisis -” perhaps the only body in a structural position to counter possible encroachment by local, state or federal political branches. “They cite George Mason’s observation by law professor (and blogger at Volokh Conspiracy) Ilya Somin that” establishing normal judicial review of emergency measures can help reduce the risk of the emergency being used as a pretext to enforce constitutional rights undermining and weakening the restraints on government power, even if it doesn’t. “Really necessary to address the crisis.” Without such a review, Wiley and Vladeck warn, “We are risking decisions like Korematsu versus the United States” that infamous 1944 verdict confirming the incarceration of Japanese Americans during World War II. They note that the risk of undue respect is that courts “suffer gross violations of civil rights, either because they are unwilling or unable to meaningfully question the government’s alleged demands on necessity”.
The consensus of Justice Neil Gorsuch in the Roman Catholic Diocese of Brooklyn against Cuomo reinforces this point. “Even if the constitution took a vacation during this pandemic, it cannot become a sabbatical year,” he writes. “We may not be there if the Constitution is attacked. If we do, things will never go well.”