SCOTUS: Exactly The Kind Of Discrimination Forbidden By The First Amendment

…The applicants have clearly established their entitlement to relief pending appellate review. They have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008). Because of the need to issue an order promptly, we provide only a brief summary of the reasons why immediate relief is essential.

… At the hearing in the District Court, a health department official testified about a large store in Brooklyn that could “literally have hundreds of people shopping there on any given day.” App. to Application in No. 20A87, Exh. D, p. 83. Yet a nearby church or synagogue would be prohibited from al- lowing more than 10 or 25 people inside for a worship ser- vice. And the Governor has stated that factories and schools have contributed to the spread of COVID–19, id., Exh. H, at 3; App. to Application in No. 20A90, pp. 98, 100, but they are treated less harshly than the Diocese’s churches and Agudath Israel’s synagogues, which have ad- mirable safety records.

Because the challenged restrictions are not “neutral” and of “general applicability,” they must satisfy “strict scrutiny,” and this means that they must be “narrowly tailored” to serve a “compelling” state interest. Church of Lukumi, 508 U. S., at 546. Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.” They 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 applicants’ services.

Irreparable harm. 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 in- stances 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. App. to Application in No. 20A90, at 26–27.

Public interest. Finally, it has not been shown that granting the applications will harm the public. As noted, the State has not claimed that attendance at the applicants’ services has resulted in the spread of the disease. And the State has not shown that public health would be imperiled if less restrictive measures were imposed.

… For these reasons, we hold that enforcement of the Gov- ernor’s severe restrictions on the applicants’ religious services must be enjoined.

Per Curiam

Government is not free to disregard the First Amend- ment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles.

… As almost everyone on the Court today recognizes, squar- ing the Governor’s edicts with our traditional First Amend- ment 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. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

Nor is the problem an isolated one. In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___, ___ (2020) (GORSUCH, J., dissenting). In far too many places, for far too long, our first freedom has fallen on deaf ears.

… Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only sur- mise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Con- stitution is under attack. Things never go well when we do.

… It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.

— JUSTICE GORSUCH, concurring.

… Moreover, New York’s restrictions on houses of worship not only are severe, but also are discriminatory. In red and orange zones, houses of worship must adhere to numerical caps of 10 and 25 people, respectively, but those caps do not apply to some secular buildings in the same neighborhoods. In a red zone, for example, a church or synagogue must ad- here to a 10-person attendance cap, while a grocery store, pet store, or big-box store down the street does not face the same restriction. In an orange zone, the discrimination against religion is even starker: Essential businesses and many non-essential businesses are subject to no attendance caps at all. Read more»


Supreme Court of the United States, Roman Catholic Diocese of Brooklyn, NY v. Cuomo, November 25, 2020.


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  1. This pandemic has given an opportunity for every petty tyrant to crawl out from under a rock and give edicts. They need to remember that many of us have fought for this country, designed, built and tested the technology they use, paid taxes, and done countless other things that have made their job possible. Whether our relationship with them is a covenant or a social contract, there are two parties in it and the way I see it, they owe us big. My grandfather did not fly all those missions over Nazi Germany, get shot down, and spend all those months in prison camp so these small fascists could revoke the Bill of Rights two generations later. I served expecting the magistrate to serve the people also and uphold his oath of office. Millions of us feel the same way.

    On another note, we little people have been arguing for months that there’s no reason why you can shop at Costco and WalMart and go to a strip club but can’t attend church. The “essential/non-essential” distinction has likely far more to do with Leftist governors’ designs for the Great Reset than public health. The magistrate has no God-given authority to regulate our worship anymore than we have veto power over his activity. There is a separation of church and state for good reason. Many of we little people have been chastised by the managerial class and even clergy for making the same arguments that SCOTUS made above. Church is essential.

    • Bryce,
      Our panic pandemic is an orchestrated crisis, if not the unmentionable fact that the Covid-1984 Coup is a constitutional watershed. Americans are now presumed infected until proven healthy and the latter with unreliable, expensive and time consuming tests.

      Not to mention the 2020 Mail In Ballot fraud predicated on the previous “medical” emergency at the instigation largely of the vanguard for the Bolshevik Party, i.e. the Democrats, though the RINOs aren’t much better.

      Neither do I see that improving any time soon, in that judgement begins in the house of God. Consequently as below, maybe the church needs to do a better job of separating itself from the state to begin with.

    • Bob,

      I don’t know if they planned it or not, but the more time passes the more I think they’re trying to re-order our lives rather than mitigate the virus. These Davoisie are not, in most cases, legitimate magistrates (several look like Bond villains) and we are under no obligation to obey them. To the extent that governors are cooperating, they should be resisted by lesser magistrates and deposed.

      The problem is more than half the population wants something like the Great Reset. At least they think they do. I can’t understand how socialism, which has the goal of communism, is still possible after its disastrous effect on man in the 20th century. This time will be different? God help us.

    • Bryce,

      “I can’t understand how socialism, which has the goal of communism, is still possible after its disastrous effect on man in the 20th century.”

      John Knox’s answer was:

      (W)hen God is angry or displeased, there is no error so foolish, unlikely or out of order, which Satan shall not persuade some to believe” (Works V:454.)

      The American church? Dunno. They might be still eating turkey and waving the flag.

      All that not to discount the Main Scream Media’s daily saturation bombing runs over the country in order to demoralize, delegitimize and confuse any opposition to our New Moral & Medical Order our ruling class is intent on enforcing.

  2. George Washington’s 1789 Thanksgiving Proclamation is a good reminder how far we have fallen as a nation. Can we even imagine an American President speaking to us this way today?:

    By the President of the United States of America, a Proclamation.

    Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor– and whereas both Houses of Congress have by their joint Committee requested me to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.

    Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be– That we may then all unite in rendering unto him our sincere and humble thanks–for his kind care and protection of the People of this Country previous to their becoming a Nation–for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war–for the great degree of tranquility, union, and plenty, which we have since enjoyed–for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted–for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

    And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions– to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually–to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed–to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord–To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us–and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

    Given under my hand at the City of New York the third day of October in the year of our Lord 1789.

    Go: Washington

    • Frank,
      Agreed. But if Turkey Day only goes to remind us how far we have fallen as a nation, what business then does the church of the Lord Jesus Christ have going along with it corporately? (Not all do, but I would say the majority does.)

      FTM at least for presbyterians, Geo. Gillespie’s English Popish Ceremonies, the reprint of which in 2013 was mentioned here on the HBlog, the church has no authority to institute annual/automatic days of thanksgiving. While WCF 21 allows for occasional extraordinary days of prayer or thanksgiving, normally the one day in seven sabbath is quite adequate.

      Much more again, our circumstances as a nation might dictate something quite to the contrary of a day of thanksgiving, never mind an essentially erastian church falling in lockstep with an increasingly pagan magistrate’s declaration. National traditions may die hard, but they are not sacrosanct to begin with and I don’t know that the contemporary church can make the distinction.


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