In an effort to curb the spread of COVID-19, New York Governor Andrew Cuomo issued an emergency Executive Order limiting attendance at religious services to 10 people in “red” zones and 25 people in “orange” zones. Conversely, the Executive Order allowed “essential” and even some nonessential establishments to have unlimited capacity in those same zones. Specifically, businesses classified as essential, including acupuncture facilities, campgrounds, and garages, could admit as many people as they wanted in red zones. Likewise, in orange zones, non-essential businesses could decide for themselves how many people to admit.

The Roman Catholic Diocese of Brooklyn filed an action for immediate injunctive relief in the U.S. Supreme Court, alleging that the Executive Order limiting attendance at religious services to 10 and 25 people, respectively, violates the First Amendment’s guarantee of the “free exercise” of religion, particularly because secular business could remain open without capacity limitations. The Diocese argued that the Executive Order “effectively bars in-person worship at affected churches – a ‘devastating’ and ‘spiritually harmful’ burden on the Catholic community.” Shortly thereafter, a separate emergency application was filed with the Court by Aguduth Israel of America, a national grassroots group representing Orthodox Jews and two New York City synagogues. The Court combined the two cases.

In Roman Catholic Diocese of Brooklyn v. Cuomo, the Court, in a split 5-4 decision, blocked New York from imposing the strict limitations on attendance at religious services set forth in the Executive Order. In support of its decision, the Court stated that the regulations “cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.” Because the Executive Order is not neutral, it is subject to the most stringent constitutional test: strict scrutiny. Since less restrictive rules could have been employed, such as basing the maximum attendance on the size of the facility, the Executive Order failed the strict scrutiny test. The decision also applies to the action filed on behalf of the New York synagogues.

This decision is important because it is a clear example of the shift in the Court since the confirmation of Justice Amy Coney Barrett this fall. Earlier in the spring, before Justice Ginsburg’s passing, the Court denied emergency relief to churches in California and Nevada that challenged similar capacity limits during COVID-19. This decision also is of particular importance to school districts because it may shed light on how the Court would rule on a separate emergency action concerning restrictions on religious education. Notably, under the New York Executive order, both public and private schools were required to be closed in red and orange zones, but could open at full capacity in yellow zones, while houses of worship were limited to 50 percent of their capacity. Additionally, as this decision indicates, prior rules concerning religion in society and schools may be changing.

For questions about this case or COVID-19 capacity limitations, please contact an attorney in our Students/Special Education or Board Governance/Corporate practice groups.