Court Halts Application of New York's Occupancy Limits to Synagogues, Churches

Steven D. Schwinn, University of Illinois Chicago Law School

The Supreme Court yesterday granted an application to temporarily halt the enforcement of New York's "red zone" and "orange zone" occupancy limits to the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, the plaintiffs challenging the restrictions. The ruling means that New York cannot apply its red- and orange-zone restrictions to the plaintiffs as their case works its way through the lower courts. (It's currently on appeal at the Second Circuit.) But it also telegraphs the way the Court will rule when the case eventually comes to it on the merits.

The 5-4 ruling reflected the conventional divide on the Court (with Chief Justice Roberts siding with the three progressives). It also revealed a rift between Justice Gorsuch and Chief Justice Roberts, as Justice Gorsuch took aim at the Chief for his earlier opinion in South Bay. The ruling illustrates the impact of Justice Amy Coney Barrett: it almost certainly would've come out the other way if Justice Ginsburg were still on the Court.

The Court held that New York's 10- and 25-person occupancy restrictions (the red- and orange-zone restrictions, respectively) likely violate the Free Exercise Clause. The per curiam opinion said that the zones "single out houses of worship for especially harsh treatment" in comparison to secular "essential" businesses like "acupuncture facilities, camp grounds, garages[, and] plants manufacturing chemicals and microelectronics and transportation facilities." The Court said that because the restrictions are not "neutral" and of "general applicability," they must satisfy strict scrutiny, and that they failed. The Court noted that New York's zones are far more restrictive than other COVID-related regulations that the Court has considered, that "there is no evidence that the applicants have contributed to the spread of COVID-19," and that the state could achieve its objective (to minimize the risk of transmission) with less restrictive means, for example, tying the occupancy limits to the size of the synagogue or church (rather than setting the limit at a particular number).

Chief Justice Roberts dissented, arguing that an injunction isn't necessary, because the state lifted the red- and orange-zone restrictions on the plaintiffs.

Justice Breyer dissented, joined by Justices Sotomayor and Kagan, arguing that the injunction isn't necessary and that the plaintiffs didn't meet the requirements for an "extraordinary remedy."

Justice Sotomayor dissented, too, joined by Justice Kagan, arguing that the state treats synagogues and churches more favorably than similar secular activities (like concerts), and that the state's "essential services" that enjoy more favorable treatment are distinguishable based on the science.