Wednesday night--a few minutes before midnight--the U.S. Supreme Court released its decision granting an emergency injunction to halt Governor Andrew Cuomo's lockdown orders restricting religious gatherings as a violation of the First Amendment's protection of religious liberty. This is the first time that the Court has indicated that the Constitution's securing of individual rights from infringement by government cannot be suspended during the emergency of the COVID pandemic. This is also the first decision showing how the replacement of Ruth Bader Ginsburg by Amy Coney Barrett has shifted the majority on the Court towards a Lockean constitutionalism of originalist jurisprudence in protecting constitutional rights and limiting governmental power.
In two earlier cases from California and Nevada, which were issued before Justice Ginsburg's death in September, the Court upheld COVID lockdown restrictions on worship gatherings by 5-to-4 votes. Chief Justice Roberts voted with Justices Breyer, Sotomayor, Kagan, and Ginsburg, with Justices Alito, Thomas, Gorsuch, and Cavanaugh dissenting. Now, in Roman Catholic Diocese of Brooklyn v. Cuomo, the Court has reversed those decisions through another 5-to-4 vote, which Justice Barrett casting the decisive vote, joined by Alito, Thomas, Gorsuch, and Cavanaugh. Barrett has now replaced Roberts as the crucial swing vote between the liberals and conservatives on the Court.
The opinion of the majority is not signed. But it probably was written by Justice Barrett. If you compare this opinion with some of the opinions Barrett wrote for the 7th Circuit of the U.S. Court of Appeals, you will see some distinctive traits of her writing that are manifest in this opinion. For example, she likes to begin sentences with the word "and." And in this 6-page opinion, she does that 6 times.
By executive order, Governor Cuomo had imposed restrictions on gatherings for religious services. In "red" zones (where the COVID outbreak was most severe), no more than 10 people could attend each religious service. In "orange" areas (with less severe outbreaks), attendance was limited to no more than 25. The Governor had done this after some ultra-Orthodox Jews in Brooklyn had openly defied and protested against earlier orders restricting worship gatherings. The Roman Catholic Diocese of Brooklyn and the Agudath Israel of America filed suits in federal court arguing that this violated their First Amendment right to the free exercise of religion. While pursuing appellate review of a lower federal court ruling against them, they asked the U.S. Supreme Court to issue an emergency injunction stopping any enforcement of the Governor's orders. A few days ago, the Governor changed his orders so that his color code for Brooklyn and Queens was changed to "yellow" zones, which removed the more severe restrictions on worship gatherings. The plaintiffs argued, however, that they still needed an injunction to prevent the Governor from reinstating the "red" and "orange" restrictions at his discretion.
The fundamental question here is whether in time of some great emergency--particularly, when public health and safety are threatened--the constitutional protection of individual rights and limitations on governmental power must be suspended to allow the officers of government to exercise prerogative power: the power to exercise discretionary judgment outside the law to do whatever is necessary to protect the public good. The principle here might be salus populi suprema lex--the safety or health of the people is the supreme law, which allows executive rulers to act outside the normal legal limits on their power.
In previous posts (here and here), I have contended that the Constitution cannot rightly be suspended during an emergency like a pandemic. While protecting the public good in time of emergency might require extraordinary measures from government, it is still the right of the people to judge whether these measures truly do serve the public good--whether the benefits of these measures for the public safety outweigh their costs, including the costs from sacrificing constitutionally protected liberty. The exercise of the "police power" of state governments to protect the public health allows for broad powers to respond to outbreaks of infectious disease, but the abuse of these powers can be struck down by the courts if they violate the Constitution.
Now, it seems that a majority of the Supreme Court Justices agree with this. In her opinion for the majority, Justice Barrett declares: "even in a pandemic, the Constitution cannot be put away and forgotten" (5). In his concurring opinion, Justice Gorsuch takes the same stance. "Government is not free to disregard the First Amendment in times of crisis" (1). "Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical" (3). "We may not shelter in place when the Constitution is under attack" (6). Here the Court agrees with Justice William Strickman, the Federal District Court judge who struck down the lockdown orders in Pennsylvania, who argued: "the Constitution applies even in times of emergency."
The Court also agrees with Judge Strickman's argument that the Supreme Court decision in Jacobson v. Massachusetts (1905) does not support setting aside the Constitution during a pandemic. As Justice Gorsuch explains, the Massachusetts law requiring smallpox vaccination during a smallpox pandemic was justified only as long as it did not "contravene the Constitution of the United States" or "infringe any right granted or secured by that instrument." Henning Jacobson claimed that requiring him to be vaccinated violated his liberty to protect his "bodily integrity," which is not a constitutionally specified right. By contrast, Governor Cuomo's orders violated a right to the free exercise of religion expressly stated in the First Amendment. Also, the restriction on Jacobson was easily avoided and rather modest: he could either accept the vaccination, pay a fine of $5, or identify some basis for exemption. Governor Cuomo's orders were a much more severe violation of liberty in banning all forms of traditional forms of public worship.
And while the vaccination order in Jacobson could be seen as a necessary means for controlling the smallpox pandemic, the closing down of the houses of worship in New York was not necessary to control the COVID pandemic. The churches and synagogues in New York had taken precautions to make worship gatherings safe--by requiring masks, social distancing, and even prohibiting singing.
Moreover, Governor Cuomo's orders were unconstitutionally discriminatory in that while religious gatherings of more than 10 people (in "red" areas) or more than 25 people (in "orange" areas) were prohibited, gatherings of large numbers of people in grocery stores and big-box retail stores were permitted. In the orange zone, even "non-essential" businesses were free to admit as many people as they wished.
Even Chief Justice Roberts, while dissenting from the majority opinion, seemed to agree that Cuomo's orders were probably unconstitutional: "it may well be that such restrictions violate the Free Exercise Clause" (1). But Roberts claimed that there was no need to rule on that question at this time. The Governor has dropped his restrictions. And if he were to renew those restrictions, then the plaintiffs could renew their request for injunctive relief, Roberts advises. Gorsuch complains that Roberts is being unreasonable here. The plaintiffs have been under unconstitutional restrictions for months, and it has taken weeks for their case to reach the Supreme Court. The Governor changed his color coding just a few days ago, but he could reinstate the previous restrictions tomorrow, forcing the plaintiffs to renew their request for an injunction, and then the Governor could just change the rules again just as the case reached the Court again. And in fact, both Governor Cuomo and Mayor de Blasio have recently said that it's only a matter of time before all five boroughs of New York City are switched from "yellow" to "orange."
What we see here is a contrast in judicial temperaments. Roberts is always looking for ways to display judicial restraint--finding some way to avoid striking down as unconstitutional the work of the elected branches of government. Those like Gorsuch are more inclined to judicial activism--claiming that judges have the constitutional duty to enforce constitutional limits on government, even when that means frustrating the wishes of the elected officers of government.