Supreme Court comes down on side of churches in New York’s pandemic restrictions on congregation size

November 26, 2020 • 10:00 am

In a new ruling, the U.S. Supreme Court overturned New York Governor Andrew Cuomo’s limitation of congregation sizes in churches during the pandemic.  The ruling was split 5-4, with new Justice Amy Coney Barrett voting with the conservative majority—affirming the side of the Roman Catholic Church, which brought the suit—while Chief Justice Roberts voted with the liberals. (Had RBG been alive, the vote would have been 5-4 the other way.)  Beside the unsigned majority opinion, there are separate concurring opinions by Justices Gorsuch and Kavanaugh, while there are dissenting opinions by Roberts, Breyer, Kagan, and Sotomayor in various combinations.

While the judgment affirmed that Cuomo’s order violated the First-Amendment guarantee of freedom of religion, one shouldn’t assume that the decision was purely one of religious conservatism, for this was a tough call.  You can read the opinion below (the unsigned majority take is short), or read the New York Times article about the decision (click on both screenshots below).

The Times’s article:

This ruling overturns two lower-court decisions affirming Cuomo’s decision to force churches to have 10 or fewer congregants during the “red-zone” phase of the pandemic.  One of the reasons the majority overturned this restriction (which has since been rescinded!) is that the numerical restriction was not imposed on businesses other than churches. Hence, one could construe that this violates the First Amendments “free exercise” provision by discriminating against churches.

From the majority decision:

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, The disparate treatment is even more striking in an orange zone.  While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

Irreparable harm. There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion). If only 10 people are admitted to each service, the great majority of those who wish to attend Masson Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance. App. to Application in No. 20A90, at 26–27.

But against this, one could argue, as did Justice Sotomayor in her dissent, that businesses that didn’t have government-specified limits are materially different, in terms of viral spread, from church congregations, especially where congregants are singing loudly. From her dissent:

But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.

As I noted, the case appears moot because the numerical limits obtaining at the time of the lawsuit have since been lifted (this was emphasized in the dissents). But the majority opinion took that into account as well, saying that Cuomo’s decision could be reversed, and rather than re-litigate the issue, I presume the court wanted to render an opinion that would be in place should that reversal take place:

The dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants may hold services at 50% of their maximum occupancy. The dissents would deny relief at this time but allow the Diocese and Agudath Israel to renew their requests if this recentreclassification is reversed.

There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan

B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particular areas without prior notice.3 If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained.

I suppose Left-wing sites might couch this as an unwarranted, pro-faith opinion supported by the usual suspects, who now include Barrett. And that may be the case, but it’s not a cut-and-dried issue. Here are my thoughts:

1.) It is supremely important to uphold the Free Exercise clause, just as it’s important to uphold the entire First Amendment, which includes freedom of speech as well as of worship.

2.) Nevertheless, when public safety is compromised by free exercise of religion, the former trumps the latter, as it has historically. Practicing one’s faith does not give you the right to endanger those who are not of your faith.  This gives courts the power to restrict religious practice if it, for example, is likely to spread coronavirus.

3.) But one cannot discriminate against churches in this respect, imposing sanctions on them that aren’t imposed on similar enterprises like businesses.

4.) HOWEVER, and this is the most important bit for me, is a church with a congregation limit of 10 equivalent to a business like Wal-Mart in which more than ten people are present at once—in a much larger space? I don’t think so, particularly when church congregants sing and pray without masks, a particularly dangerous way of spreading the virus via respiratory droplets.  I’m not sure whether the court’s decision, holding equivalence such as this, is justifiable, and Sotomayor makes that point. This is in fact a public health rather than a legal decision, and is not really within the court’s competence.

5.) As for the restrictions having changed, rendering the original lawsuit moot, I do agree with the majority that given the to-and-fro of restrictions during the pandemic, a judgment was still warranted. Whether this was the right one, I am not sure. But it’s better to have some opinion in place rather than having the matter re-litigated should restrictions once again be imposed.

Perhaps there are lawyers in the crowd here who want to render an opinion, and I have to say that I haven’t scrutinized the entire set of opinions minutely. But this decision doesn’t bother me as much, as, say, ones that pose more serious dangers, including those that restrict abortion or dismantle the Affordable Care Act. But those will be coming, for the court is now solidly conservative—even if Justice Roberts is mellowing in his old age.


51 thoughts on “Supreme Court comes down on side of churches in New York’s pandemic restrictions on congregation size

  1. This decision disrespects my right to exercise my Deeply Held Beliefs about the causal relationship between respiratory disease and death, and my right to pursue life instead of death.

    1. Sadly, you’ll have to exercise your deeply held breaths if you come near any of these religious Covidiots, ThyroidPlanet…

  2. The real point, the one that really matters was said by Sotomayor. Not within the courts competence. Also, first amendment principals should not interfere with health issues and equal access or harm to any part of society. This is why the Hobby Lobby court case was wrong. Religion should never override health issues and if a company is allowed to pick and choose parts of a given insurance plan for religious reasons it does harm to company employees.

    1. Religion occupies a unique position in our constitutional structure. Because the founding fathers did not want the church to run our government, they did their best to make sure our government could not run the churches. There’s a lot of friction in this relationship and no good answer, only accommodation.

      1. The spot it occupied in the constitution was none at all actually. It wasn’t until the Bill of rights a couple of years later it came up as something like free speech, the govt. was okay with. The idea was – If they left religion alone it would leave them alone. However, that was wishful thinking.

  3. It still makes no sense to me to argue for equivalence between moving, shopping masked customers spread out in a WalMart to what we saw at the Jewish wedding the other day.
    It would be a small nudge in the right direction to require attendance at large church services to at least *ahem* wear masks.

    1. Yes, until I saw what you’d written I had been wondering, and still am to some extent, whether NY state requires masks when indoors in businesses.

      Require masks also in churches (with some kind of feeding tube to assist gobbling up parts of Jesus, not the sexual organ surely), bellow your un-musical hallelujahs through the mask, and just stay the hell away from strangers until further notice.

      1. The state could restore equivalent treatment if it either (1) required masks to be worn at religious ceremonies; or (2) prohibited singing and praying at Walmarts.

  4. The crucial principle here—your rights stop where my air supply begins—was, as people have noted, essentially ignored in this judgment. Very disappointing, and, I can’t help feeling, a bad augury for how this edition of SCOTUS is going to rule when sectarian doctrines collide with the common good.

    1. If that is, in fact, the overriding concern, which is arguable, then the restrictions need to be applied equally to all activity. People thing restrictions are jokes when people riot or protest without comment, or when politicians make it clear that restrictions don’t apply to them.

  5. Fine, then those churches should depend on their god for health care and remove all Catholic people from hospitals.

    1. Should your spiteful recommendation ever be followed, Catholics will do just fine. You are apparently not aware of the many Catholic charity hospitals around the U.S. which, by the way, are open to all.

      1. Sarcasm, even when directed at religion, is often not at all spiteful.

        Perhaps you should ask your god for her recording of the thoughts going through the brain of the sarcastic person, before accusing that person of spite.

      2. … … O, O, O, Mr Knauer, in re
        ” open to all, ” I can soooo easily
        read that you / yours ‘ve never, ever
        needed an abortion. And more than likely ?
        .That. has not even crossed your neurons.
        Within … … ALL o’your days.

        a former obstetrics / gynecology
        nurse ( among two other healthcare
        professions )

        1. The advancement of societal rights and human rights is directly related to the advancement of human compassion and the mental ability to “live in another’s shoes”. As you observed, Mr. Knauer has some “walking” to do.

  6. If an enemy was bombing America nightly using city lights to locate targets, would the current Supreme Court allow restricting the use of illumination at evening church services?

  7. Houses of worship are usually non-profits. Why are they being compared with the policies for businesses like Walmart instead of with other non-profits? Provided that the same restrictions apply to social, community, spiritual, religious, recreational, leisure, and sporting gatherings and events why is that not good enough? Why do those same restrictions also need to apply businesses to be legal?

  8. Whatever the nuances, this is a troubling indicator of what we can expect from this court. I don’t believe for a second that the conservative majority won’t give religion significant exceptions from constitutional restrictions.

    They will undoubtedly uphold religious exceptions to vaccination and other health issues as well, or anything that exempts someone due to ‘sincerely held beliefs’ from any legal restriction.

  9. Religious congregations are already treated differently than other organizations. They get special tax deductions for the service of spreading superstition and tribal divisions in our societies.

    1. And, like IS done within the United Kingdom and actually performed ¡ by medical
      professionals / by doctors ! there, will the USA’s SCOTUS UPON women, that is,
      persons OF majority ages, UPHOLD, thus APPROVE, religious parents’ requests
      FOR so – called ( AND gargantuanly commonly FALLIBLE ) ” virginity tests ” ?
      ¡ J E B U S !

      as of


  10. This is just a pale taste of what tRump’s recipe for the Supreme Court means. For years and years, if the number of Justices doesn’t grow

    1. With conservatives in charge of the Supreme Court, likely for decades, constitutional favoritism for religion will become firmly ensconced. At the moment secularism is growing and it will come into conflict with the religiously biased Supreme Court. Still, with the Supreme Court on their side, one might expect that the religious will stop their whining about being persecuted by liberals. This may not happen. After a half century of indoctrination, the religious right, along with other Trump supporters, reflect, as the historian Richard Hofstadter pointed out in the mid-1960s, a paranoid mind, particularly susceptible to conspiracy theories. They see enemies everywhere, all out to destroy what they believe in. I doubt that the expected influx of pro-religious rulings by the Court will alleviate their anxieties. They will never feel safe.

    2. Correct me if I’m wrong, but aren’t justices supposed to be neutral in their attitudes and biases while on the bench, justicing? (I made up the word just now.) Alito tells all that he (and symbolically the new court) is willing to abolish civil rights that have been established. Really scary shit for one of the 9 to proclaim so boldly his views and predetermined votes. No? The judicial coup is out in the open now. Scheiss.

  11. “HOWEVER, and this is the most important bit for me, is a church with a congregation limit of 10 equivalent to a business like Wal-Mart in which more than ten people are present at once—in a much larger space?”

    That’s a fair point, but if businesses can decide their maximum safe capacity, why not churches? Some churches are small; some are huge. A ten-person limit on all of them makes no more sense than a ten-person limit on all businesses.

    1. At least in Ohio max capacity/ occupancy is set by local fire officials and is displayed in the building. Therefore, 50& or whatever is a simple math problem.

    2. Not more than 1 person per 25 square meters (+ wearing masks) would have been much better, It would allow for over 2 m of distancing in all directions.
      Well, in fact that can still be done. The judgement was about 10 persons in a church, not about the no of square meter per person.
      If a shop -or church for that matter- has a surface of say 100×100 m, it can accommodate 400 max. at the entry security guards give a numbered (plastified ticket). When somebody comes out the ticket is collected, disinfected and given to the next customer (or congregant). Some shops actually did that here during the april-may peak, and I think they will soon start again.
      Of course, if your shop or church is only 6×50 or 10x20m that means only seven or eight shoppers or worshippers at a time. I guess (wid guess most churches are about 10x40m which would allow about 16 worshippers at the same time. But they should wear masks….

  12. Welcome to the country known from a quote to a reporter for WAPO as


    (emphasize pronounce 2nd ‘al’)

    This had more to do with Thanksgiving travel than to do with religious nutters.

    My Canada isn’t that much better, only by a factor of about 2.5, and probably getting worse by the minute. Too bad we couldn’t keep out the half-truths and worse of fucking Rupert Murdoch/Fox.

    My local horse-and-buggy Mennonites seem to be full of some more, this time re Covid, ‘believe what you want to believe, not what’s true’-people. But at least they obey the law, and don’t have Amy, the speaker in tongues, to appeal to, and wouldn’t anyway.

  13. I agree, this is not as clear-cut as I first thought it on seeing the headlines. I do think the limits were arbitrary and probably unfairly targeted religious services. Personally, I think going to church is about as inessential as anything I can think of, but I’m not religious.

  14. Well, I am not and never have been a lawyer, and am glad that I never will be. And as a fully-paid-up sceptic I tend to regard religion as one of many recreational, communal activities.

    So why shouldn’t it be subject to the same rules as sports? Are people allowed to attend, say, basketball matches indoors in NYC? If so, are they allowed to whoop, holler and sing? No? Same rules for religion, then. No unearned privileges!

    1. That’s not how the religious (or the SC) see it. Religion is privileged throughout our legal system, from taxes to zoning to civil rights laws and everything in between. Why should a pandemic make any difference?

      1. Steve Pollard is describing how the SC sees it until now. This decision is not in accord with precedents, it is changing the precedents.

  15. 1.) It is supremely important to uphold the Free Exercise clause, just as it’s important to uphold the entire First Amendment, which includes freedom of speech as well as of worship.

    My own preference would be for the Free Exercise clause to be subsumed completely within the Free Speech clause, which should be interpreted broadly to encompass a “right of conscience” for the religious and secular alike.

    But that is not the way the First Amendment is written; nor is it the way it has ever been interpreted by SCOTUS. And so long as that remains the case, our First Amendment jurisprudence shall remain riddled with bizarre, irreconcilable distinctions, such as that the Free Exercise clause protects Santeria practitioners’ right to sacrifice animals in violation of health and safety ordinances, but Native Americans have no right to the sacramental use of peyote in violation of drug prohibition laws.

    1. … the Free Exercise clause to be subsumed completely within the Free Speech clause, …


      But that is not the way the First Amendment is written; nor is it the way it has ever been interpreted by SCOTUS.

      Well, Employment Division vs Smith — written by Scalia, of all people — comes close to that doctrine.

  16. I see a lot of folks claiming that health concerns override any other consideration, including people’s rights. This is nothing more than the old safety vs. liberty argument, with the usual suspects championing safety, regardless of other costs. We must recognize that there ARE costs of many kinds to limiting people’s ability to assemble for whatever reason.

    1. Indeed, and it also falls into the same trap that allowing censorship does: if you command that “health concerns” override all other rights, who decides what is a health concern, what that particular health concern overrides, when, and how? What would stop a government or governor from saying that, in their opinion, we’re having a particularly bad flu season, and therefore all rights to protest have been revoked? Or that the right to unwarranted search and seizure have been overridden by a “health crisis” (again, that the government or governor decided is a “health crisis” by fiat)?

      People want the law to be so simple and easy, usually to their advantage. It’s not.

    2. There is a difference between self-assumption of self-risk against self-health, which is protected by self-liberty, and imposing risks against the health of others. The latter is not protected by self-liberty.

    3. There is a relevant distinction that you are ignoring. We arguably have liberty to take risks with our own health. But we do not have liberty to take risks with other people’s health, which is one reason why there are legally enforced speed limits on people driving cars.

  17. It would seem that the rules should be written applying to all equally — so rules like “no singing” and “max N people per square metre” would be evidence-based and would apply to all activities. And it would be fair enough for Churches to expect that.

    Different rules for churches are indeed hard to defend — but one can get around that with a bit of care in how the rules are drafted.

    1. There appears to a misunderstanding here about the context. Earlier posts said there was ten person limit regardless of building size. You ar3 saying the houses of worship were treated differently. Both are wrong. Here are the facts as Zi understand them.

      The Order itself restrict religious services less than comparable nonreligious activities. In high-severity “red” zones, religious services are allowed but limited to the smaller of twenty-five percent of building capacity or ten people. See Executive Order 202.68 (Oct. 6, 2020). By contrast, all nonessential gatherings are prohibited in the red zones; all nonessential businesses are barred from conducting in-person operations; and all in-restaurant dining is prohibited. See ibid. In moderate-severity “orange” zones, houses of worship are permitted to hold gatherings of the lesser of one-third of building capacity or twenty-five people, while nonessential gatherings are limited to ten people, businesses such as gyms and salons continue to be prohibited from conducting in-person operations, and dining at restaurants is allowed only outside and is limited to four people per table. See ibid. In precautionary “yellow” zones, houses of worship are allowed to have gatherings of up to half their building capacity, while nonessential gatherings are limited to twenty-five people, salons are limited to half capacity, gyms are limited to one-third capacity, and restaurants are limited to half capacity and prohibited from seating more than four people at a table. And concerts, live theatrical performances, and professional sporting events with spectators in attendance are flatly barred in all zones and indeed throughout the entire State.

  18. A question of judicial ethics: Since this lawsuit was brought by the Catholic Church, shouldn’t the 6 Catholic Justices
    have recused themselves?

  19. Does this decision establish that there is no public health situation in which the government can close churches? Or is this the medical opinion of the Supreme Court being expressed that this particular public health situation does not warrant it? I am really curious what the legal basis of this decision is, and what sort of intervention the decision amounts to.

    1. In the past the principle was reasonably clear, if restrictions on houses of worship were the same as restrictions on concerts and lectures then the restrictions were legal. With this decision it appears that to be confident that a restriction on houses of worship is legal that restriction cannot be more strict than any restriction imposed on *any* other place, because the SC will cite any such lesser restriction on some other place as proof that the free exercise clause is being violated.

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