Cuomo Attacks Supreme Court, but Virus Ruling Is Warning to Governors

[Ms. Toad]

41. Shame on the NYT (and others) for misrepresenting the decision

The Supreme Court did NOT strike down Cuomo's order. Nor did it rule that "If unconstrained religious observance and public safety were sometimes at odds . . . the court ruled that religious freedom should win out."

Yes, I know it's been reported that way - but anyone reporting it that way either did not read the opinion, or did not understand it.

Factual background

Cuomo's orders (10,000 foot view - I didn't read them, just the summary in the opinion with which 7 of the 9 justices seem to agree):

Areas are color coded by risk, three of which are yellow, orange, and red. In the orange and red risk areas, the orders single out religious institutions/events for special - harsher- restrictions. In yellow areas, all entities are treated the same.

Currently, the religious entities that brought the case are in a yellow area (meaning the restrictions about which they were complaining did not impact them.)

What the court did

The order barred enforcement of Cuomo's orders against the entities if the areas in which they were located ever become red or orange.

Injunctive relief is - in essence - a march in place order. It preserves the status quo when the plaintiff is likely to win its claim and when the damage would be irreparable if the threatened harm actually occurs. Because you aren't entitled to extraordinary relief unless the court thinks you will win on the merits, granting an injunctive relief grants a sneak preview into what the court is thinking before it actually decides an issue. For this (and other reasons) courts are usually very reluctant to issue injunctive relief.

So, the Supreme Court did not actually strike Cuomo's orders down. It just said, "not so fast" as to sending in the enforcers. The order not to enforce is in place only until the case is over (i.e. decided by the Supreme Court, or the Supreme Court declines to take the case.)

Importantly, the Court’s orders today are not final decisions on the merits. Instead, the Court simply grants temporary injunctive relief until the Court of Appeals in December, and then this Court as appropriate, can more fully consider the merits.

The dissent said that the Supreme court jumped the gun: That it should not consider whether to block enforcement of the orders even temporarily because there was no case or controversy, and the injunction would merely be an advisory opinion. Courts don't like to issue those. It said the court should only (and promptly) consider an injunction if the areas become orange or red - but until then, the S.Ct should mind its own business because there is no immediate need for the injunction.

I agree with the dissent that there would be no irreparable harm in waiting to consider the injunction until after the plaintiffs are in an orange or red area. So I think the court got it wrong - but not for the reasons that are causing near hysteria about the decision, and what it means as to future rulings on religion from this court.

What is likely to happen in the 2nd Circuit (or the Supreme Court, if it reaches there)

On that I agree with the majority - and Roberts (at least) will likely side with the majority

What everybody seems to think the court said in its sneak preview (but which actually bears little relation to what it did say): "If unconstrained religious observance and public safety were sometimes at odds . . . the court ruled that religious freedom should win out."

What the court actually said in its sneak preview:

As a general rule, The first amendment bars imposing special restrictions based expressly on religion (or the lack thereof).

Cuomo's orders - again, from the court summary - expressly named religious entities/events and posed strict caps on attendance without regard to anything other than the fact that they were religious in nature.

A religious venue that could hold 1000 people is capped at 10 and 25 attendees (depending on red/orange status) - but other venues in the same zone that happen to be non-religious are capped at at a percentage of their capacity.

On rare occasions, restrictions that infringe constitutional rights (voting, speech, religion) are upheld - but it is an extremely high bar. The interest has to be compelling. (All 9 agreed that controlling the pandemic was compelling.) In addition - to base the restriction on a protected constitutional interest - there has to be no means of addressing the compelling interest without restricting these constitutionally protected rights.

So - assuming the characterization of the orders is correct - I would not want to represent the plaintiffs, because they are going to lose. (And they would almost certainly have lost even with Ginsburg on the court.) That's Con Law 101: It's a loser case if you expressly restrict (or require) religion. Only Justices Sotomayor and Kagan seem to differ - suggesting (somewhat inexplicably) that, rather than treating religious entities less favorably, the restrictions actually favor religion. If they are correct - it doesn't eliminate the issue, it just shifts the issue to a different plaintiff because then similarly situated secular businesses would have a constitutional claim because the rules then favor religion.

The solution

Cuomo needs to redraft the orders to prohibit risky behavior - at all events - rather expressly basing restrictions on religious events, specifically.

If the issue is extended family sitting together at mass - require 6' between everyone at all events (not just religious ones). (At my aunt's funeral mass the church required masks, but only blocked every other pew off. So parishioners were able to sit adjacent each other even if the person they were sitting next to was not someone they lived with. That's risky behavior that can be addressed without specifying churches.)

If the issue is hanging around for coffee hour (unmasked) after church - bar all inside eating and drinking in non-residential spaces.

If the issue is moving from a large room into a small room which puts people closer together - impose capacity limits on each indoor room, not just in the building.

If the issue is the risky activity of singing - them prohibit indoor singing (regardless of whether the event is religious).

Nothing in the decision suggests to me that generally applicable restrictions could not be applied to religious events. The focus of the sneak preview focused exclusively on provisions that expressly called out religion for harsher restrictions than were imposed on other entities or events. In fact, the majority suggests such restrictions would be likely to be upheld:

(Per curiam) {T}here are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue.

(Gorsuch concurrence) As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides.

(Kavanaugh concurrence) In light of the devastating pandemic, I do not doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake. To reiterate, New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, and much more severe than the restrictions that most other States are imposing on attendance at religious services. And New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.

If Cuomo's orders are redrafted based on risky behavior, without mentioning religion, and the Supreme Court says they can't be enforced against churches, mosques, temples, etc. I'll be right there with you in condemning the court (and being extremely worried about the direction of the court) - because (as a general rule) religious activities are not exempt from generally applicable rules.

But, although this particular trouble may materialize tomorrow, I'm not going to borrow tomorrow's troubles for today - there are enough other things to worry about without freaking out about a decision that has been widely misrepresented.