The Establishment Clause in the Age of 10 Person Gatherings

On the 5th of October, Governor Cuomo tightened New York City restrictions, limiting in-person events to 10 people or below in red zones, and up to 25 people in yellow zones. This decision affects all types of communities -- from movie theatres and restaurants, to play-groups and in-person lessons.

For religious communities, Cuomo’s decision is especially hard hitting. Especially because -- as religious groups maintain -- the capacity-restrictions placed on secular businesses are far more generous than those placed on religious communities. A shopping mall, for example, was classified as a yellow zone at a lower risk setting than a religious gathering which was classified as a red zone at a higher risk. This issue came to head most recently when the Roman Catholic Diocese in Brooklyn challenged Cuomo’s COVID restrictions; state courts promptly declined to block the decision, forcing the Catholic Diocese to submit an injunctive relief to Supreme Court Justice Breyer on November 12th asking them to abolish the caps placed on 26 churches throughout the city. In particular, the Church’s argument is supported by shopping centers and general stores qualifying as a part of the city-mandated yellow zones, while the institution of a church qualifies for red zones restriction. According to Cuomo, church gatherings promote a very intimate, exclusively indoor, (and therefore riskier), social setting than that of any larger secular business. 

This is not a Catholic specific problem; the Brooklyn diocese case represents the general friction between COVID regulation and State-mandated sanctions on religious spaces. Earlier in October, Cuomo was accused of “anti-semitic behavior,” while also “unfairly targeting Catholic churches who have abided by the Governor’s health standards”. Earlier in 2020, two cases on the west coast - one in Nevada and one in California - were tried by the Supreme Court for the very same issue. In both instances, the court arrived at the same conclusion: a 5-4 split in favor of strict COVID regulation, regardless of the religious significance of gathering. In both decisions, for California in May, and later Nevada in July, Associate Justice Anthony Alito maintained that the Supreme Court has “a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.” As states continue to navigate public health concerns over large gatherings, the public scrutiny of religious tension is only exacerbating the precedent that the Brooklyn Catholic Dioceses’s case relies upon. 

The case of The Catholic Diocese is predominantly concerned with two issues. The first concern is whether Governor Andrew Cuomo’s Executive Order violates the free exercise clause. The executive order limits in-person “house of worship” attendance to 10 or 25 people, but allows “essential,” or in some cases, “non-essential” secular businesses to operate with significantly lower capacity restrictions. The case is also concerned with the “arbitrary” application of rational-basis review, which, in this case, targets religious institutions while giving secular businesses preferential treatment in the name of a public health emergency. The Catholic Diocese argues that this lack of equality in treatment undermines their fundamental right to free exercise of  religion. 

Had this case been filed before Justice Ginsberg’s death on September 18th 2020, the case presented by the Catholic Diocese would have easily fallen in line with the precedents set earlier this year (in California and Nevada). In particular, the courts have been relying on the Jacobson v. Massachusetts framework (197 U.S. 11, 1905), stating that the “[r]ight to practice religion freely does not include the liberty to expose the community. . . to communicable diseases.” 

However, since the replacement of Ruth Bader Ginsburg with Amy Coney-Barrett, the possibility of the Supreme Court upholding the Jacobson precedent in favor of Cuomo is far from certain. The replacement of Justices shifts the spotlight onto dissenting opinions from earlier in 2020 where opposing Justices argued that secular institutions were being treated more fairly. For example, in the Nevada case Justice Brett Kavanaugh writes in his dissent: “Nevada has not demonstrated that public health justifies taking a “looser” approach with restaurants, bars, casinos, and gyms and a stricter approach with places of worship.” 

At present, both the Free Exercise Clause and the Establishment Clause are at stake. The Conservative judges on the Supreme Court remain adamant that religious freedom is under threat, especially given the lee-way of pandemic decision-making. “It pains me,” Judge Alito closed his dissent with, “but in certain quarters religious liberty is fast becoming a disfavored right.” Cuomo ardently maintains that the restrictions that he has implemented have “nothing to do with what the religion is or what the party is. It's purely a function of where the [Corona] cases are," Governor Cuomo responded. The governor has defended his decisions based off of “red” and “orange” zones, rather than specific religious institutions. The problem, Cuomo elaborated, is not about the religious institutions, but rather that religious communities are not abiding by state-wide restrictions on in-person gatherings. 

It is not clear what the decision will be. However, Amy Coney Barrett has made it clear that she is a faithful Catholic, and there is a lot of pressure on her to make a decision that will mark her introduction on The Supreme Court. 

UPDATED INFORMATION REGARDING THIS CASE: 

This article was initially written at the start of November 2020. Since then, the case has since been resolved. The decision was 5-4, arguing that Cuomo’s restrictions were in violation of the First Amendment’s protection of the free exercise of religion. The restrictions on the Brooklyn Catholic Diocese have since been loosened. As the article initially suggested may occur, Justice Amy Coney-Barrett indeed provided the swing vote. 

Isobel McCrum is a junior studying History and Behavioral Decision Sciences. Her particular focus is on legal history, in particular, legal personhood as it relates to historical strands of intent and present day technology.