In a landmark vindication of religious rights, the Supreme Court of the United States issued an injunction, just minutes before midnight late Wednesday, against New York State’s arbitrary limit of 10 or 25 individuals in houses of worship with capacity for hundreds in Red and Orange zones. In so doing, the High Court sided with Agudath Israel of America and the Roman Catholic Diocese of Brooklyn in their legal challenge against such limitations.
In its 5-4 ruling, the Supreme Court reasoned that imposing such limitations on houses of worship and not “to ‘essential’ businesses such as acupuncture facilities… strikes at the very heart of the First Amendment’s guarantee of religious liberty.”
The Court’s ruling is important because it will allow individuals of all faiths in New York to immediately pray utilizing the same occupancy restrictions and safety procedures that govern similar secular activities.
But this ruling is truly historic because the nation’s highest court issued an “extraordinary remedy,” enacting an emergency preliminary injunction to nullify an executive order – during a pandemic – to reaffirm the bedrock American principle that religious freedom shall not be a second class right in the United States. This ruling is certain to have nationwide legal impact on the status of religious freedom for years to come.
Justice Gorsuch’s concurring opinion was particularly impassioned. The Justice lamented, “Even if the Constitution has taken a holiday, during this pandemic, it cannot become a sabbatical,” concluding, “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.”
Even the four dissenting Justices based much of their argument not on disagreement with the legal principles set forth by the majority, but on the timing of weighing in at this point.
“This is an historic victory,” said Rabbi Chaim Dovid Zwiebel, Executive Vice President of Agudath Israel, “This landmark decision will ensure that religious practices and religious institutions will be protected from government edicts that do not treat religion with the respect demanded by the Constitution.”
“We are grateful to the High Court for this foundational ruling,” said Avrohom Weinstock, Esq., Agudah’s Chief of Staff. “We also would like to thank the indefatigable Avi Schick and his legal team at Troutman Pepper, and the attorneys at the Becket Fund, for their powerful legal briefs.
“Most importantly, we are deeply grateful to G-d, the true Judge, and to our rabbinic leaders whose repeated encouragement and insistence on the importance of this matter spurred us to persist in this battle towards the Supreme Court.”
Concluded Shlomo Werdiger, chairman of Agudath Israel’s Board of Trustees, “It was not an easy decision for Agudath Israel to go to court over this matter. That is not our preferred means of advocacy. However, the principle at stake was of such monumental importance that we felt impelled to fight to uphold our religious freedom.
“The Agudah has prioritized health since the onset of this pandemic, and we continue to encourage sound health practices. With the legal parameters clarified, we look forward to continuing to work hand in hand with our elected officials to ensure the well-being of our community with a single standard of safety for religious and secular activities.”
Huge decision. I only skimmed it but Roberts probably is right, to the effect that there is no case and controversy, since the restrictions expired. The old standard used to be a kind of compelling state interest, like scrutiny for religion. That was changed to a lower standard just so much as the law is neutral. The Court ruled that since the restrictions do not apply to stores, then they are not neutral and then, strict scrutiny kicked in. The dissent makes a good point, the appellants compared apples to oranges. Stores do not have people sitting for an hour close together and singing. The houses of worship should be compared to stadiums and theaters, which were closed.
At any rate, the Court ruling was just on the injunction, with a standard of “likely to win.” Hence it is unclear how much this will change the law of the land.
There are plenty of times when people are crowded into stores. Plus, even in stores that aren’t crowded people end up waiting in line side by side.
No, Roberts was totally wrong because there is a case and controversy. In this instance, Covid 19 restrictions are based on daily statistics that are constantly changing. It is a fluid situation that is topsy turvy. In such an environment where new restrictions are constantly moving, the discussion is far from moot.
With all due respect to the individual that wrote this article, it is not at all how Constitutional law works.
The 1st Amendment free exercise clause is not absolute. See the seminal Supreme Court case of Smith v Oregon from 1990 where a law that infringed on a religious right was constitutional because that law was across the board. There must be dispirit impact on a certain group for the law to be unconstitutional.
In this case, bars have less restrictions than shuls even though bars tend to get crowded and have people there for long periods of time. Same for grocery stores, where people are constantly coming in and out yet lack the same restrictions as shuls. This is dispirit impact not in line with Smith v Oregon so Cuomo’s executive order is unconstitutional.
The other 3 dissenters stated that there was no dispirit impact and made some outlandish argument about theatres being closed, so shuls are not disparately impacted. They clearly don’t see the whole picture and made an unintelligent argument.
To TLS, next time discussing a ruling re Constitutional law, please take it from a source that discusses the entire argument and its implements, not from a source that is clearly lacking.
5-4 conservative vs liberals with CJ Roberts again siding with the liberals. Reblican appointed justices disappoint time after time, as opposed to Democrat appointed ones who never disappoint, no Democrat appointed justice has ever become more conservative, while Republican appointed ones have become more liberal. B”H RBG was replaced with ACB by President Trump.
@teacher
Sounds like you’re the same teacher who wanted the public school closed…
Restrictions expired so there’s no case? The virus is still going on with threats every day of rolling back the “Opening up” besides, they should come back the next time the restrictions take affect and wait a week + for a ruling? Why does a ruling have to be pertinent this moment? Is every law in the constitution pertinent at every moment? We need rulings for these out of control governors – shuls and churches were clearly singled out for one reason – the Democrats have no regard to prayer. It’s just not important to them. Did you know the CDC wrote regarding voting even people sick with covid can go vote “just be careful”! It’s all about priorities…And I don’t know where you daven but there’s no singing or talking together for an hour+ – as the dissent claims! We don’t talk facing each other (together) and singing is maybe on shabbos… (If that’s the issue I’m sure we can stop the singing) Acupuncture someone is literally breathing on you touching you etc. I would think it’s worse! The difference between shuls and stadiums and theatures is huge – they are far from essential and don’t enroach on religious freedoms too!!
Article Three of the Constitution. NJ Courts hear complaints without case and controversy but not federal.
I advocated a hybrid schedule like every other district so that instead of 30 kids in a class each day, there would be 15. Two cohorts, A and B.
The Court talked about singing, not me. I listened to Roberts’s confirmation hearing and I never heard anyone as smart since Frankfurter. I have not seen a single opinion of his where he got it wrong.
BTW The Roberts Court will be remembered as a great First Amendment Court. Some of the greatest freedom of speech cases since Holmes and Brandeis were written by him. Perhaps this case will add free exercise to the legacy reversing some of the setbacks during the Rehnquist Court.
Brandeis wrote that the court should never hear a constitutional case if it could be decided on another issue. Ashwander v Tenn. Val. Auth.
The Court opinion was too short to for much precedent.
Your accusation is about Democrats is ridiculous. Also, you will be eating yours words because they will be the future party of religion. If you watched the convention, one of the most invoked words was G-d. Bidden also is very religious, and being Catholic, had Kennedy talked as much about his faith then, he would never have been elected.
The dissent talked about singing. It is moot but I think if an ordinance were to be written in a neutral language, for example, restriction on places where people congregate for an hour like theaters and stadiums (maybe include schools) then it would pass muster, unless of course, it targeted religion, like that case in which the city banned animal sacrifice (City of Hialeah).
If you watched the DNC convention you would know that they omitted the words “under G-D” from the pledge of allegiance. Really going to be “the party of religion”…
I did not know that. I remember hearing it the first day and it was in it but did not hear the pledge the other days. Are you sure? I think you should check up on this. The phrase was added during Eisenhauer, who I think was a great president, but it has not been taken out. The national convention of one of the parties would not do so on its own.
100% sure. It is still available online you can google it and listen to it yourself.
Um ACB is much smarter than Roberts, He has gotten it wrong on many cases, he just makes up a reason to justify the outcome he wants, the affordable care act, the census question, DACA, etc. A case isn’t moot just because the unconstitutional act of the state is not today in force (if that were the case the state would just repeal the law when it gets to the supreme court and reinstate it once it is dismissed as moot) especially when it can be reimposed anytime cuomo decides. The democrats will never be the party of religion as they move more and more left, they have become more anti religious by the year, their religion is leftism where religious freedom is banned. Also his name is Biden not that he can remember hoe to spell it either.
First of all, there is no reason why the Court should ever rule an act of a sovereign legislature unconstitutional. Marshall was wrong that Marbury. Seventeen members of Congress and George Washington was at the Constitutional Convention ruled the 1789 Judiciary Act unconstitutional. It did not happen again until Dred Scott when the Court created substantive due process, rather than procedural, saying that the substance of an act of Congress cannot deprive liberty or property. This led to Lochner and its progeny from 1895-1937 so that states could not have minimum wages, health restrictions, maximum workers hour, and then Grisswold and its progeny since 1963 which includes Roe v Wade and Lawrence v. Texas, which is some kind of mysticism based on haloes and penumbras emanated from the Constitution, of course through the due process clause. The third amendment quartering of troops means a state cannot ban contraceptives. But the third amendment does not apply to the States!
I agree with the derech of Professor Thayer and his progeny, Holmes, Brandeis and Frankfurter, that only under the most extreme situations a Court should interfere in the political process. After all, what is a court, a legislature of last resort? Thayer wrote in his seminal 1898 paper that this whole idea originated in NJ in 1781 when the legislature allowed six member juries. No act of Parliament was ever ruled unconstitutional.
So what is better, to rule acts unconstitutional or not? We now have same gender marriage, abortion, Miranda (because the Bill of Rights applied to the states and all its prophylactic creations such as the exclusionary rule, all through due process), criminals let go because of this or that technicality, etc.
Roberts is as close as anyone to this line of thought.
I think it was the intention of the Constitution to allow the states to legislate without federal interference. It was never the intent of the Fourteenth Amendment’s due process to change that.
I disagree with your view of Roberts. Roberts has not displayed any tendencies to overturn the Incorporation Clause and return to the days of Adamson.
Hugo Black, the former Supreme Court Justice and open member of the KKK, had this strict constructionist mindset that posited that any non-explicit item in the Constitution is unconstitutional. However, Black’s understanding is flawed, see the Slaughterhouse cases.
A court should never interfere with political process; its job is to apply the law, nothing more. Cases like Obergfell were situations where the Supreme Court made its own determinations and definitions, which is problematic because it interfered with state policies.
However, when States enact laws, those laws must fall under the Bill of Rights via the privileges and immunities clause. It is not interference with the states; it is a parameter the states must follow.
We heard it many times that when Hashem is ready to send Mashiach, he will come very quickly.
Do you remember the speed of the republicans to appoint the new Supreme Court justice. She was the one who tilted it in allowing a large Shul to have more than 10 people. We are getting a taste of the days of Mashiach. The people that are rushing, some of them don’t really know the true reason why they are so quick to take care of a certain thing.
Hugo Black was wrong and Frankfurter was right. Look at the Strauder (1880) case where a Black man’s conviction was overturned because state law did not allow Blacks to serve on juries. However in Twitchel (1869) a Black man was convicted without Fifth and Sixth amendment rights. The justices who lived through the Civil War and passage of the 14th amendment did not see it to incorporate.
Hugo Black’s research was flawed and overturned all previous jurisprudence. And privileges and immunities is meaningless except, perhaps, what Justice Story wrote about going to the courthouse, ability to do business, basic common law rights, if there was any substantive meaning at all. The due process clause also was meaningless. All both clauses meant was that you have to give rights to Blacks. How else would you phrase it? Treat them equal, give them same privileges and immunities, and due process of the law. Why would the amendment not say incorporation if that is what it intended?
Alas, The Court made so much out of the 14th amendment that it was too late for Holmes to stop the nonsense, He said in Lochner that it only need be rational, that only something repugnant to freedom is unconstitutional (Thayer’s idea), like the First Amendment, and of course only through the due process clause. See my paper I wrote on interstate commerce in which I cover this topic in 10 Dartmouth Law Journ. 76 (2012).
@Teacher, I am but a simple guy. I do not grasp all your legal, scholarly back and forths. ( just a simple uneducated trump voter who lacks any proper grammar.) Please keep it simple for me.
Re the fact that it’s no longer relevant. As many pointed out, the idea is that if there is another wave he can’t do it again.
Re the argument well he just has to reword it. Yes that’s true . But were he to say ban all indoor gatherings of business that would be far more cumbersome, harder to implement and he’d think twice
You also fail to mention that he the rule would have to be based on capacity not merely ten people . That would automatically help large shuls.
There is also a monetary case still in play . Now all tickets can be dismissed
I totally don’t get your argument re The Courts not getting involved in politics . Exactly which issue is non political ! Abortion and gay rights are non political ? There are always two sides and it’s usually blue vs red .
Why should this differ ?
I am not sure if you made this argument , but re the idea that during a pandemic a governor needs to have broad powers . That’s up to a point . You can say ok for 4 weeks fine . But for two years ? Just close shuls ? It’s just an unprecedented overreach on our civil rights
It is very simple. The Court should not be hearing these issues. One state makes abortion illegal the other legalizes it. Same with same gender marriage. If the individual state’s court decide, it is their business. The only authority that the Court have is under the due process clause of the Fourteenth Amendment. That is the old English principal that government must take you to court to deprive you of life, liberty or property. It was passes to protect the freed slaves. It did not create new rights. It is also in the Fifth Amendment limiting federal power (14th for states). Likewise the Fifth Amendment did not create new rights, contrary to Calhoun’s argument, that it created the right to bring slaves into federal territory. It was assumed that Congress can ban slavery. The Dred Scott case adopted the new principal that “due process” does not just mean the dime for the phone call but it creates new rights, which boils down to whatever judges want it to say. That is the only reason why we talk about liberal or conservative judges. Otherwise, there would be very little politics, with the exception of some debate with limiting the interstate power of Congress, but that is another discussion. Also, the Court needs to referee between the power of Congress and the states, and between states and corporations (Dartmouth v Woodward, contract clause).
Bottom line, the Court is not meant to be a second bite of the apple when a cause loses in the legislature.
As for Roberts, yes the EO it might come back, but as Brandies said, in Tenn, Valley, and everyone agrees he was one of the greatest on the Court, and the Court still holds of his rules, that the Court should never rule on a Constitutional question if not necessary. It should allow laws to stand and whatever grounds it can find. It is not the business of Court to second-guess the legislature. That is what Roberts did with Affordable Care Act which was brilliant. The Court should not be political or second guess Congress. However, Holmes and Brandeis themselves gave the First Amendment special status, and Roberts has written some of the finest First Amendment opinions, it is possible Brandeis would have agreed (I am not sure. I can see my teacher, who was a talmid of Frankfurter still saying not to interfere with democracy, even though it was an EO).