Supreme Fizzle for Cuomo’s Microcluster Bomb

December 3, 2020 | By Reuvain Borchardt | Hamodia

“Late Wednesday night last week, the U.S. Supreme Court issued an injunction overturning New York State’s strict limitations on houses of worship, following lawsuits filed by Agudath Israel and several of its shuls, and the Brooklyn Catholic Diocese.

For religious communities in New York, the ruling, handed down minutes before midnight on Thanksgiving Eve, appeared to be the culmination of battles that had been fought since New York political leaders placed strict limits on attendance at houses of worship last spring, and which ramped up with the enactment of Gov. Andrew Cuomo’s Cluster Action Initiative on October 6.

The day after the ruling was handed down, Hamodia spoke with Agudah attorney Avi Schick, a partner in the Troutman Pepper law firm, about the legal battle and the implication of the Supreme Court’s ruling on religious liberties during the COVID pandemic and beyond.

How much sleep did you get last night?

As much as I needed, after terrific news like that.

When did you get news of the ruling? I believe it came down just before midnight.

I got an email from the United States Supreme Court at 11:47 p.m. And, baruch Hashem, it contained the ruling we had been hoping for: an injunction against Governor Cuomo’s limitations on attendance at houses of worship.

What was your reaction, getting news of the ruling at that time of night?

I was pretty sure at that point that we weren’t going to get it until after the Thanksgiving weekend. So it came as a total surprise given the late hour — and the surprise quickly gave way to elation at the result.

You had actually told me the previous week that you expected a ruling sometime before the end of the day Wednesday. I guess that’s exactly what you got.

Yeah, but I wasn’t expecting it that late Wednesday!

Let’s talk about the ruling. There had been two prior COVID rulings at the Supreme Court, where the Court had declined to issue injunctions overturning limitations on houses of worship. Then, in this case, the Court did overturn it. Some legal observers believe this is not just one case, but an indication that the Court will be going in a different direction now in houses-of-worship cases.

supreme court new york houses of worship

Absolutely. There are several very important aspects of this decision that are going to impact conduct by both Governors and judges across all 50 states. First, as you mentioned, there were prior decisions: one in a California case called South Bay, at the end of May, and another called Calvary Chapel from Nevada in July. In South Bay, Chief Justice Roberts issued a short concurrence to the denial of the injunction saying that they did not meet the high standards for an emergency injunction and citing a 1905 case about deference to the states in times of a public-health crisis. Somehow, this short concurrence saying that this particular plaintiff did not meet the standards for extraordinary relief at this time was used to justify restrictions on religious expression across the country. It was cited by more than 100 courts and relied upon to reject challenges to restrictions on religious practice. That, in turn, emboldened Governors to impose harsh restrictions because they thought courts would defer to them.

That is now no longer the case. So I think that one of the really important consequences of last night’s decision is that it reset the field entirely. That doesn’t mean that religion is going to win in every case. But until last night Free Exercise challenges to COVID restrictions were consistently rejected because of the South Bay decision. And now that’s been wiped off the books.

South Bay was not explicitly overturned.

It will no longer be cited or relied upon. It is significant to note that in our case, Chief Justice Roberts agreed, in a solo dissent, that the limits imposed by Governor Cuomo were constitutionally suspect. He did not want to grant the injunction because he felt that the Court could stay out of the fray in light of the Governor’s redesignation of the orange zones to yellow a few days ago. But the Chief Justice wrote that “Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the free Exercise Clause.” So even Chief Justice Roberts walked back South Bay, and certainly, five other justices entirely ignored it.”

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