On Monday, a Second Circuit panel ruled that New York Governor Andrew Cuomo could no longer enforce occupancy limits for houses of worship during the COVID-19 pandemic. The opinion. authored by Chief Judge Michael H. Park, based the decision on the recent Supreme Court ruling that had resulted in a preliminary injunction enjoining the enforcement of the occupancy limits until the federal appellate courts reviewed the full merits of the lawsuit.
The initial litigation involved a group of Jewish synagogues and Catholic churches suing Governor Cuomo to overturn the order via a declaration of its unconstitutionality. Judge Park wrote that “in light of the Supreme Court’s decision, we hold that the Order’s regulation of ‘houses of worship; is subject to strict scrutiny and that its fixed capacity limits are not narrowly tailored to stem the spread of COVID-19…. The Governor’s order is subject to strict scrutiny because it is not neutral on its face and imposes greater restrictions on religious activities than on secular ones,” particularly those deemed “essential” by the Executive Order (EO) that have no occupancy restrictions.
The Governor argued that the court should not apply strict scrutiny to the determination of whether the EO’s effect on houses of worship was constitutional, but rather rational basis review. For Cuomo, the court explained, “rational-basis review applies because those limits ‘do not disfavor religious gatherings in houses of worship as compared with all secular activities that present a similar or greater risk of COVID-19 spread (like) concerts and theatrical performances.’”
The appellate panel disagreed, explaining that the aforementioned argument for rational basis review only further “highlights the fact that the Order is not neutral towards religion. Rational basis review applies when a neutral and generally applicable policy incidentally burdens religion; a policy that expressly singles out religion (even if it also does so for other limited categories of gatherings) for less favored treatment, as here, is subject to strict scrutiny.”
The opinion further held that the strict scrutiny review was not any less appropriate if religious gatherings were deemed to be nonessential. The court explained that judges “apply strict scrutiny to assess whether a government policy impermissibly ‘devalues religious reasons’ for congregating by judging them to be of lesser import than nonreligious reasons.”
With the determination of the legal standard in tow, the court proceeded to apply the standard to the facts. The panel explained that strict scrutiny says a state action that infringes on the First Amendment right to religious assembly —in this case the EO— is only constitutional if the EO furthers a compelling government interest in a manner that is narrowly tailored to ensure religious freedoms are as mildly infringed as possible. The court averred that stemming the spread of the COVID-19 pandemic was indisputably a compelling government interest. However, the appellate panel nonetheless ruled that the EO failed to survive strict scrutiny as the occupancy limits for gathering in houses of worship were not supported by evidence showing how the restrictions reduced the spread of COVID-19 or how lesser restrictions would increase said spread.
At the end of the ruling, the court enjoined the enforcement of the EO insofar as it placed occupancy limits (whether rooted in a specific number of people or a percentage of occupancy limits established by the fire code) and remanded to the district court for a determination of what occupancy limit —if any— on religious gatherings would be constitutionally permissible under the First Amendment during the remainder of the COVID-19 pandemic. The court ultimately ruled that “even if based on the acknowledged police powers of a state, a public health measure must always yield in case of conflict with…any right which the Constitution gives or secures…. Even in a pandemic, the Constitution cannot be put away and forgotten.”
The plaintiffs are represented by Gibson, Dunn & Crutcher.
