„But even in a pandemic, the Constitution cannot be put away and forgotten.“
Finally. As Justice Neil Gorsuch writes in a scathing concurrence, “It is time—past time—to make plain” that the Constitution applies at all times, even in pandemics. In a 5-4 vote late on Wednesday evening, the Supreme Court issued an injunction against Governor Andrew Cuomo’s order that allowed businesses to operate at the capacity of their choosing but limited religious services to either 10 or 25 people at a time. Cuomo’s not the only target of this injunction, however: A divided Supreme Court blocked New York from imposing strict limits on attendance at religious services to combat Covid-19, with new Justice Amy Coney Barrett casting the pivotal vote to depart from past cases that deferred to state authorities on public-health measures. In orders issued late Wednesday, the court, in a 5-4 vote, set aside attendance limits that Democratic Gov. Andrew Cuomo imposed on houses of worship in areas most severely affected by the coronavirus: 10 people in red zones and 25 in orange zones. New York classifies places where coronavirus infections are of increasing severity as yellow, orange or red.… The court found it troubling that businesses that the state considered essential weren’t subject to the same occupancy limits. Those included “things such as acupuncture facilities, campgrounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities,” the court said. “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the opinion said. But New York’s restrictions “strike at the very heart of the First Amendment’s guarantee of religious liberty.” “Who knew public health would so perfectly align with secular convenience?” Gorsuch wrote in his concurrence about the lack of similar restrictions on the aforementioned businesses in the Wall Street Journal’s quote. But Gorsuch had more on his mind than just New York’s latest — or semi-latest — attempts to arbitrarily impose disparate limits on religious worship. Gorsuch also pointedly called out the court for its earlier pusillanimity on similar cases, especially in Nevada: In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. See Calvary Chapel Dayton Valley v. Sisolak,591 U. S. ___, ___ (2020) (GORSUCH, J., dissenting). In far too many places, for far too long, our first freedom has fallen on deaf ears.… Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do. This comes down to the issue of scrutiny. When government actions proscribe or interfere with a constitutional right, especially an explicit right enumerated in the Constitution, it requires a strict-scrutiny review. That means New York has to identify a compelling state interest, for which public health and pandemic control certainly qualify, but also demonstrate that the intrusion is narrowly tailored and rationally based.
