As I am sure you are already aware, the U.S. Supreme Court recently barred New York Governor Andrew Cuomo from enforcing an Executive Order limiting in-person worship services. I have received a number of questions about this case, so here is what the Court said, what the Court did not say and a key fact worth noting.

Before I jump in, please note that the following is a review of the law as interpreted by the U.S. Supreme Court in this ongoing case. My position remains as follows: the state should treat the church as a peer or equal institution and should partner with the church to promote public health rather than simply dictating regulations to the church. Many government officials (for example, Governor Cuomo; see below) have overstepped in their regulation of churches and other places of worship during the pandemic, and that can be stated while still recognizing the good faith motivation of those officials to stop the spread of COVID-19. Now, back to the case.

#1 What the Court Said

Here’s a brief review of the facts. Governor Andrew Cuomo of New York recently passed an Executive Order restricting attendance at houses of worship (which were deemed “non-essential”) to 25% of maximum occupancy or 10 people, whichever is fewer, while allowing “essential” businesses such as bike shops, grocery stores, and liquor stores to remain open. You can access a full list of “essential” businesses under the New York order here. The Catholic Diocese of New York and Agudath Isreal, a Jewish synagogue, brought suit over these restrictions, and the U.S. Supreme Court enjoined Governor Cuomo from enforcing his Executive Order in a per curiam (signed by the court generally rather than by a particular justice) opinion pending a full appeal of the case. Since this opinion from the Court analyzed the likelihood of success on the merits, it is a strong signal that the places of worship will ultimately prevail in the matter. You can find the full decision here.

First, and most importantly, the Court said that the Plaintiffs would be irreparably harmed if prevented by Governor Cuomo’s Order from holding in-person worship services. This section is important to read in its entirety:

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 Mass on 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.

Pastors have been saying this from the very beginning, and I am grateful that the Court formally recognized that in-person worship is a central and essential element of religions such as Christianity and Judaism and moved to protect in-person worship. Further, the Court specifically commented on the definition of places of worship as “non-essential” and other businesses as “essential” and held that this classification system led to troubling and discriminatory results.

The Court also mentioned a square-footage approach that I (and many church leaders) have been wondering about since the beginning of the lockdowns: “…[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.” Not sure why this wasn’t the approach of government officials from the start, but I am thankful the Supreme Court mentioned it in this ruling.

This decision departed from previous Supreme Court rulings on restrictions in Nevada and California, which compared churches to public assemblies such as movie theaters and upheld restrictions on in-person worship services. This decision appears to have shifted the analysis away from this question, “Did the government treat public assemblies such as movie theaters more favorably than churches?” to this question, “Did the government treat any business more favorably than churches; and, if so, can the government justify that disparate treatment? That is a key, positive development. Justice Kavanaugh explained this shift as follows in his concurring opinion:

Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are
excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 844. The State has not done so.

What changed from the California and Nevada decisions earlier this year? Since the decision was 5-4, the reason appears to be straightforward: Justice Amy Coney Barrett.

#2 What the Court Did Not Say

Second, the Court did not overrule all COVID-19 restrictions affecting churches. This was a fact-specific ruling on the very harsh (the Court mentioned this several times) restrictions set out by Governor Cuomo and does not restrict enforcement of government orders in other states. That said, the principles from this ruling can be applied in other jurisdictions if churches are facing similar, severe restrictions.

I can state with certainty that the following contravenes the First Amendment as interpreted by the Supreme Court: a restriction defining churches as “non-essential” and limiting gatherings to 10 or 25 people while allowing “essential” businesses such as hardware and grocery stores to remain open without occupancy limitations (other than general limits applicable before the pandemic). Beyond that, the application of this case is helpful but not determinative. Churches facing restrictive COVID-19 orders can and should pursue modifications of those orders in light of this ruling.

#3 A Key Fact

The Supreme Court noted that both the Diocese and Agudath Israel were complying with and even exceeding recommended health precautions prior to Governor Cuomo’s Order. Here’s a key section:

And they tell us without contradiction [from the state] that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.

I am aware that there are strong opinions on implementing COVID-19 related protective measures (such as social distancing and masks) at churches. So, my point here is straightforward. In the “public interest” analysis (a key factor in considering an injunction), the Court cited the protective measures employed by both the Diocese and Agudath Israel and the lack of infections as key reasons for granting the injunction.

In conclusion, the Supreme Court essentially held that (at least in the context of Governor Cuomo’s order) the church is essential. And, for that, I am grateful.

What are your thoughts on this ruling? Your comment welcome below.

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