It was early this past October, several months after the initial outbreak of COVID-19. The Jewish community in Brooklyn was just beginning to resume something of a normal routine, when, on the eve of the Jewish holiday of Simchas Torah, Governor Andrew Cuomo decreed yet another shutdown, this one seemingly targeted at religious worship. His “Cluster Action Initiative” caught community leaders off guard—and short on time to challenge it in court before the holiday began.
Without firm guidance from the Supreme Court, even after the moment of constitutional crisis has passed, plaintiffs may find themselves in a perpetual state of on-again-off-again litigation.
In fact, by the Governor’s own admission, this lockdown order was expressly directed at “ultra-Orthodox” Jews. The Governor’s plan created color-coded COVID-19 “hot-spot” zones that coincided with Orthodox Jewish enclaves. Within those zones, houses of worship were singled out and subjected to an exceptionally restrictive set of rules limiting their attendance. Meanwhile, in the same zones, secular businesses that the Governor deemed “essential,” like pet shops and liquor stores, were allowed to stay open without any limits on capacity.
Though not his intended target, churches were also “swept up” in the Governor’s directive. And, within days, both the churches and a group of synagogues were in court contesting the Governor’s order as a violation of their free exercise rights under the Constitution. After weeks of litigation—and defeat—in the lower federal courts, both sets of plaintiffs sought emergency relief in the Supreme Court in November. The Court agreed to consider the churches’ and synagogues’ cases together.
The Governor, however, was prepared. Just as the Supreme Court was set to rule on their emergency motion for relief, he announced he was lifting the very COVID restrictions the plaintiff churches and synagogues had challenged. The areas in question had now been reclassified from “orange” to “yellow” zones. Consequently, the parties were no longer subject to a 25-person gathering limit and could now operate at 50% capacity, which was a restriction they had not challenged in their lawsuits. Since the original restrictions no longer applied, the Governor argued, there was no need for the Supreme Court to get involved. As far as the state was concerned, everyone could go home.
But COVID restrictions that have been lifted on the eve of a court’s decision, or at any other time, for that matter, can be reinstated the very next day if the Governor so chooses. As I’ve written previously, once state governors declare a state of emergency, their powers to rule by fiat have been virtually unchecked. Without firm guidance from the Supreme Court, even after the moment of constitutional crisis has passed, plaintiffs may find themselves in a perpetual state of on-again-off-again litigation.
That guidance finally came at the end of last month after the Supreme Court agreed to consider the plaintiffs’ request for an emergency injunction in their case, Roman Catholic Diocese of Brooklyn v. Cuomo. The case presented the Court with the opportunity to address the “irreparable harm” to civil liberties caused by the challenged restrictions. And it brought to light a vexing problem: the paradoxical burden placed on the plaintiffs when those restrictions are lifted just as the court is about to rule.
Although courts have historically deferred to state government actions during public health emergencies, the Court in Roman Catholic Diocese agreed to block Governor Cuomo from enforcing the gathering limits on houses of worship. By granting the injunction, notwithstanding that the restrictions the parties challenged had been lifted, the Court has properly reoriented its deference—even during a health crisis—back towards the religious freedom the Constitution enshrines.
THE SUPREME COURT DECLINES TO “STAY ITS HAND”
As is often the case, it was not only what the Court decided, but also how it arrived at its decision that matters. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court rejected the dissenting Justices’ view that the Court should “stay its hand” now that the Governor’s restrictions were lifted. After all, Chief Justice Roberts reasoned in his dissent, the plaintiffs were welcome to come back to court, if necessary, in the future. There was “simply no need,” he insisted, for the Court to act now.
The Supreme Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo is a welcome and long-overdue pushback on governors’ unconstitutional pandemic orders.
But that sort of ivory-tower reasoning fails to take seriously the risks and expenses of lawyering up, yet again, on a moment’s notice. And it gives short shrift to what the courts have long recognized as the “irreparable harm” caused by “the loss of First Amendment freedoms, for even minimal periods of time.” It would be wrong, Justice Gorsuch wrote in his concurrence, to “discount the burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services.”
Even more to the point, Justice Gorsuch seemed to apprehend the Governor’s tactics, and the insult they added to the plaintiffs’ injury. It is hard not to view the coincidental timing of the original executive order with a major Jewish holiday as a sign of bad faith. Thereafter, the Governor had changed his mind repeatedly, and without warning, and could do so again, putting the plaintiffs right back where they started—only with fewer resources with which to fight back.
As Justice Gorsuch recognized, “to turn away religious leaders bringing meritorious claims just because the Governor decided to hit the ‘off’ switch in the shadow of our review would be … just another sacrifice of fundamental rights in the name of judicial modesty.”
The Supreme Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo is a welcome and long-overdue pushback on governors’ unconstitutional pandemic orders. Just as importantly, it is a warning to governors who would contemplate lifting pandemic orders “in the shadow of the court’s review” as a litigation strategy aimed at frustrating their adversaries.
From now on, the Court has made clear: it will not permit the state to play a game of cat-and-mouse with Americans’ civil liberties.