In the late-night decision, Barrett sided with her conservative colleagues in the dispute, while Chief Justice John Roberts joined the three liberal justices in dissent. The ruling underscores Barrett’s impact on the bench, reflecting the Court’s rightward shift.
Last spring and summer, before the death of Justice Ruth Bader Ginsburg, the Court split 5-4 on similar cases out of California and Nevada, with Roberts and the liberals in the majority siding against houses of worship. Barrett was confirmed in October to take Ginsburg’s seat.
The ruling, released just before midnight on Thanksgiving eve, contains several separate opinions and some unusually critical language.
In the main, unsigned opinion, the majority ruled in favor of the Roman Catholic Diocese of Brooklyn and Agudath Israel of America that argued that the restrictions violated the Free Exercise Clause of the First Amendment because the regulations treated the houses of worship more harshly than comparable secular facilities.
The majority said that the regulations are “far more restrictive than any Covid-related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus” at the religious services in question.
The restrictions on attendance are divided up by geographic zones in areas classified as “red” or “orange” zones.
In court papers, lawyers for Cuomo argued that the restrictions were necessary to help stop the spread of Covid-19 and that houses of worship weren’t being treated differently than similar secular businesses. They also said that while the dispute was pending, Cuomo had already lifted any restrictions that applied to the organizations.
“Not only is there no evidence that the applicants have contributed to the spread of COVID-19 but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” the Court held.
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the Court said. “But even in a pandemic, the Constitution cannot be put away and forgotten.”
The Court said that even though Cuomo had lifted some restrictions, the houses of worship “remain under a constant threat” because the restrictions could always be reinstated.
Lower courts had sided with Cuomo.
Lawyers for the diocese had told the justices in court papers that the “pandemic alone cannot justify overbroad, untailored closure orders of indefinite duration directed at all houses of worship, that in another time would plainly be found to violate the Constitution.”
And lawyers for the Agudath Israel of America said that the governor has specifically targeted Orthodox Jews who have “violated his prior rules.”
“The Governor’s guilt-by-religious-association restrictions have made it impossible for Applicants and their members to exercise their religious faith,” they argued.
6 opinions in the late-night ruling
In all, the late-night ruling consisted of six different opinions.
Justice Neil Gorsuch wrote his own concurrence — joined by no other justice — to explain his vote.
He said that other businesses such as bicycle repair shops, did not have similar restrictions.
“So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine” or “shop for a new bike,” Gorsuch wrote.
He was critical of the reasoning of a decision penned by Roberts in May rejecting a request from a church in California to block limitations on the number of people who could attend religious services during the pandemic.
Gorsuch said the Court precedent Roberts cited in that decision “hardly supports cutting the Constitution loose during a pandemic.”
For his part, Roberts said he was in dissent because while “it may well be that such restrictions violate the Free Exercise Clause,” Cuomo had revised the restrictions after the religious organizations had filed their challenge.
“It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic,” Roberts wrote, and said that the houses of worship could have returned to court if Cuomo had reversed himself.
But Roberts — who often works to keep the Court out of the political fray and divisive atmosphere that has dominated the other branches of government — had stern words for Gorsuch’s criticism of the dissenters’ reasoning.
“They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution,” he said.
He also pointedly defended his own reasoning in the case from May.
Justice Stephen Breyer, joined by Justices Elena Kagan and Sonia Sotomayor, said that the regulations were designed to “fight the rapidly spreading — and, in many cases, fatal — COVID-19 virus,” and that they allowed the governor to identity hot spots where the virus had spiked. Breyer noted the grisly statistics concerning the virus that has infected more than 12 million Americans and is currently surging. “The Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States,” Breyer wrote.