Big: Supreme Court Blocks Cuomo’s NY Attacks On Religious Gatherings

P. Gardner Goldsmith | November 26, 2020
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In a minutes-to-midnight ruling, a majority on the Supreme Court of The United States (SCOTUS) ruled in favor of an injunctive block of NY Governor Andrew Cuomo’s “gathering restrictions” on houses of worship.

The decision was 5 to 4, and saw Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett in the majority, and Chief Justice John Roberts side with leftists Stephen Breyer, Sonia Sotomayor, and Elena Kagan in the minority.

Yes. John Roberts sided with the left, as he so shamefully did on Obamacare in 2012.

And the ruling applies to two cases, brought within days of each other to oppose Cuomo’s October “Executive Order” banning indoor gatherings of ten or more people in what he labeled “Red Zones” where the unreliable COVID19 “case numbers” were deemed “high.”

This saw the Roman Catholic Diocese of Brooklyn and two Jewish synagogues file separate actions to block enforcement of Cuomo’s “order,” on the grounds that it violated their right to the free exercise of religion guaranteed by the First Amendment, and that it was an unequal application of executive power, because many secular businesses in the “Red Zones” are allowed to remain open. 

As Amy Howe explains for SCOTUSBlog:

The diocese went to the Supreme Court on Nov. 12, asking the justices to block the attendance limits after the lower courts declined to do so. It told the Supreme Court that as a practical matter, the order ‘effectively bars in-person worship at affected churches – a ‘devastating’ and ‘spiritually harmful’ burden on the Catholic community.’

And she covers the second legal action, as well:

The synagogues followed on Nov. 16. They stressed that although they have complied with previous COVID-19 rules, the restrictions imposed by Cuomo’s order preclude them from conducting services for all of their congregants, and they argued that Cuomo’s order targeted Orthodox Jewish communities because other Orthodox Jews had not complied with the rules.

Given the crass and obnoxious ways Governor Cuomo has expressed himself, one wonders what kind of flip comments he might offer about losing to both parties in the Supreme Court.

One thing he did do was act like a schoolyard bully who’d been caught, for, in court, his representatives argued that, well, heck, sure, the “Cuomo Cartel” did threaten those worshippers, but the zones are no longer “Red”, so the restrictions are off.

Kind of like the bully saying, “Well, yeah, I threatened those younger kids to stop them from sitting with each other, but it’s over now, and, even though I claim the power to do it again, well… just, kind of… let me continue to claim I have the power to threaten them.”

The majority wasn’t buying his nonsense.

But this is only a temporary injunction, stopping any further enforcement while the plaintiffs bring separate litigation against Cuomo’s edicts through the Second Federal Circuit Court of Appeals. And the ruling doesn’t address numerous important constitutional problems created by Cuomo’s edicts (and by those of a similar nature in other states and cities).

Yes, the majority clearly found that the order was not applied equally. As Howe notes:

The court explained that Cuomo’s order does not appear to be neutral, but instead ‘single[s] out houses of worship for especially harsh treatment.’ For example, although a synagogue or a church in a red zone is limited to 10 people at a service, there are no limits on how many people a nearby ‘essential’ business – which can include acupuncture or a camp ground – can admit.

But this does not address the unconstitutional nature of the Executive Order process itself, its fascistic attack on the Contract Clause (Article One, Clause Ten) of the Constitution (which prohibits state politicians from interfering in the fulfillment of private contract), or Cuomo’s clear attack on the First Amendment, not just in applying his “order” to churches, but to ANY people who want to freely associate.

Not only is his Executive Order an insult to religious liberty, it’s a spit-in-the-face attack on the principle of free association that is supposed to protect free enterprise – and is supposed to be acknowledged by the court because it is IN THE BILL OF RIGHTS.

Numerous Justices offered separate Opinions, on both sides of the 5-4 split. But this, from Justice Gorsuch, encapsulates the force with which the majority sided with the plaintiffs – and indicatest what is sorely lacking from even some who are seen as staunch conservatives on the bench. Wrote Gorsuch in his concurring opinion:

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.

It's time to stop limiting the recognition of the Bill of Rights, the Contract Clause, and the deeper roots of Natural Rights. While this ruling is a positive development, while it slaps down Cuomo’s arbitrary and immoral edicts, it could have gone much further towards recognizing fundamental liberty and private property, towards respecting free will and freedom of association.

We can only hope that some on the bench will embrace that level of understanding, and act accordingly in the future.