On Tuesday, the Supreme Court, drawing from the ruling they issued last month in favor of New York churches and synagogues against New York Governor Andrew Cuomo’s pandemic restrictions in the case Roman Catholic Diocese of Brooklyn v. Cuomo, issued an unsigned order that sided with a Colorado church in one case and a Catholic priest and rabbi in New Jersey in the other.
The Court sent the cases back to the lower federal courts, which had refused to block restrictions on houses of worship in Colorado and New Jersey, with instructions for them to factor in the Court’s ruling in Roman Catholic Diocese of Brooklyn v. Cuomo.
The Colorado church, High Plains Harvest Church, north of Denver, was fighting against Colorado Democratic Governor Jared Polis’ restrictions; Fr. Kevin Robinson and Rabbi Yisrael A. Knopfler chafed at New Jersey’s restrictions targeting places of worship.
Barry Arrington, an attorney representing High Plains Church, asserted, “Today in Colorado it is perfectly legal for hundreds of shoppers to pack themselves cheek by jowl into a Lowes or other big box store or patronize any one of the thousands of other retail establishments that are not subject to draconian numerical limits.”
As Amy Howe wrote at SCOTUS Blog, High Plains Harvest Church argued that Polis’ restrictions unfairly limited in-person attendance at houses of worship to 50 people, regardless of the size of the building. Meanwhile, many secular businesses had no such limits. Howe continued:
In a filing on Dec. 9, Colorado told the justices that the case was moot because the church “already has the relief it seeks”: The state recently lifted the capacity limits on “all houses of worship at all times in response to this Court’s recent decisions.” But the state also defended the current public health orders as valid, arguing that it imposed them to curb the spread of COVID-19 and that there was no evidence that the state was motivated by an intent to discriminate against religion. The limits on indoor worship services, the state stressed, cannot be compared to “the spontaneous protests after George Floyd’s death,” which occurred outdoors.
Justice Elena Kagan, in dissenting, wrote in the Colorado case that the case was moot and assumed, “Absent our issuing different guidance, there is no reason to think Colorado will reverse course—and so no reason to think Harvest Church will again face capacity limits. When ‘subsequent events’ thus show that a challenged action cannot ‘reasonably be expected to recur,’ a case is well and truly over.”
In the New Jersey case, the state of New Jersey admitted that in light of Roman Catholic Diocese of Brooklyn v. Cuomo, they agreed that the Supreme Court should send the case back to the lower courts, which the Court ultimately wound up doing.
The Daily Wire reported on November 26:
In a 5-4 ruling late Wednesday night, the Supreme Court backed a religious challenge to Democratic New York Gov. Andrew Cuomo’s restrictions limiting attendance at religious services. The majority ruling blocks enforcement of the restrictions while the applicants pursue appellate review. The ruling highlights the lack of evidence that the applicants — the Roman Catholic Diocese of Brooklyn, two Jewish synagogues, and an Orthodox Jewish organization — have contributed to the spread of the virus and questions the rationale of the specifics of Cuomo’s restrictions, which limited services to just 10 and 25 occupants for red and orange zones, respectively.
The Court wrote:
Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.
Justice Neil Gorsuch added, “It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.”