Hate Speech, Public Order, Religious Expression
Chettiar v. Naicker
Decision Pending Expands Expression
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The United States (US) Supreme Court granted an injunction over the New York Governor’s enforcement of an executive order aimed at combatting COVID-19, pending appeal in the US Court of Appeals. The applicants, Roman Catholic Diocese of Brooklyn and Agudath Israel of America, claimed that they were disproportionately impacted by restrictions that limited attendance at their institutions to only 10 or 25 persons whilst secular businesses nearby were not capped, violating the Free Exercise of the First Amendment. The US Supreme Court found that the applicants had established their entitlement to relief by demonstrating that their claims were likely to prevail, that a denial of relief would mean irreparable injury, and that relief would not prejudice public interest. Specifically, the Court noted the favorable treatment given to “essential” secular businesses, the precautions taken by the applicants, and their large seating capacities. Thus, the restrictions were not “narrowly tailored,” causing notable harm to attendees and that there was insufficient evidence that public health would be jeopardized by upholding First Amendment protections. Despite an easing of the restrictions due to a lowered threat level, the Court found it necessary to grant the requested relief in the event circumstances changed and the restrictions were reinstated.
The dissenting opinions argued that secular gatherings of similar form were actually treated less favorably and, without a clearer picture about the violations, the Court should have deferred to elected officials amidst COVID-19’s rapidly changing crisis. Additionally, injunctions were extraordinary remedies that could not be used before full information emerged and hearings took place.
The issue in this case was the same as that of Agudath Israel of America, et al. v. Cuomo, No. 20A90, and the Court’s opinion addressed both together.
The applicant in this case was the Roman Catholic Diocese of Brooklyn. Similar to the applicants in the related case, Agudath Israel of America and affiliated entities, the applicant filed an emergency application for injunctive relief from an Executive Order issued by the Governor of New York, Andrew M. Cuomo, that imposed severe restrictions on attendance for religious services in certain areas.
As part of the State’s response to the COVID-19 pandemic, the Executive Order was designed to label hot spots where infection rates had spiked. Hot spots were labelled as “red” zones with the strictest regulations imposed. Immediately surrounding areas were “orange” zones and the rest was designated as “yellow” with the least strict restrictions. In October, the Governor designated these zones in parts of Brooklyn and Queens.
Specifically, the restrictions limited the number of persons who could attend a gathering at one time in a house of worship. The designation of red zones meant that no more than 10 persons or 25% of maximum capacity could attend an individual religious service. For orange zones, the designation meant that no more than 25 persons or 33% of maximum capacity could attend. For yellow, it was 50% of maximum capacity.
The applicants argued that the limitations of red and orange zones, applicable to affected areas, violated the Free Exercise Clause of the First Amendment. Both parties requested a preliminary injunction from a Federal District Court to prohibit the enforcement of these zones. The District Court in the Roman Catholic Diocese’s case found that the restrictions were devised on science and epidemiological purposes and that religious gatherings were treated more favorably than similar risk gatherings, e.g., public lectures, concerts, or theaters. The other “essential” businesses treated more favorably were deemed to be distinctive and the District Court decided not to reconsider the State’s judgment about essential businesses, denying the injunction.
The District Court declined to issue an emergency injunction pending appeal. The Court of Appeals for the Second Circuit also denied the request for an emergency injunction but called for an expedited briefing and scheduled a hearing for December 18 on the case’s merits.
Subsequently, the parties filed an emergency application to the US Supreme Court to enjoin the enforcement of the Executive Order as they pursued appellate review at the Second Circuit.
Following their application, Governor Cuomo reclassified the affected areas to yellow zones.
The US Supreme Court sought to determine if the applicants established their entitlement to injunctive relief, on the basis of whether the restrictions of the disputed zones violated the First Amendment’s Free Exercise Clause.
Citing various remarks by Governor Cuomo, Agudath Israel claimed that the Governor specifically targeted the Orthodox Jewish community, in effect “gerrymandering the boundaries of red and orange zones” [p. 2] to include areas that were highly Orthodox. The Diocese and Agudath Israel also argued that the restrictions treated religious institutions disproportionately as compared to secular organizations. This was even more evident since the religious institutions claimed without contradiction that they complied with all public health guidance, incorporating extra precautionary measures. Likewise, they cited operating at 25% or 33% capacity without a single outbreak over the course of months.
The Court observed that the applicants clearly established their entitlement to relief. Particularly, they demonstrated that their First Amendment claims were likely to prevail, that a denial of relief would mean irreparable injury, and that relief would not prejudice public interest. Emphasizing the need “to issue an order promptly,” [p. 2] the Court provided only a brief overview of the reasons for why immediate relief was “essential” [p. 2].
Regarding the likelihood of succeeding on the merits, the Court noted that the applicants established that the restrictions violated the “the minimum requirement of neutrality” to religion. As exemplified in the red zone, attendance was capped at 10 persons for synagogues and churches, but businesses deemed “essential” were permitted to admit unlimited numbers. Essential businesses included places like “acupuncture facilities, camp grounds, garages” [p. 3]. The Court found the disparity “more striking” [p. 3] in orange zones, where attendance was capped at 25 persons, but non-essential businesses could “decide for themselves how many persons to admit” [p. 3]. The Court outlined that such incongruent treatment fed “troubling results” [p. 3] where vast numbers of people could be shopping in one store whereas a nearby church or synagogue could not have more than 10 or 25 people inside for worship. The results also meant that factories and schools were treated less severely, despite the Governor attributing the spread of COVID-19 to them.
Due to restrictions lacking neutrality, the Court sought to apply “strict scrutiny” which required restrictions to be “narrowly tailored” so as to serve a “compelling” state interest. Whilst curbing the spread of COVID-19 was a compelling state interest, the regulations were not considered narrowly tailored. They were “much tighter” than those in other jurisdictions affected by COVID-19 and “far more severe than ha[d] been shown to be required to prevent the spread of the virus” [p. 4]. Similarly, there had not been any outbreak detected in the Diocese’s churches since their reopening and their efforts to combat COVID-19 were stricter than those required by the State – this was not disputed by the Governor according to Agudath Israel.
The Court found that there were several “less restrictive rules” [p. 4] that could have been implemented to mitigate the risk during religious services. For example, the seating capacity of the churches and synagogues which ranged between 400 and 1,000 seats could have been taken into account. On that basis, the Court was not persuaded that the current limitations reasonably averted more serious risks as compared to other activities that were allowed.
Regarding irreparable harm, the Court found there was “no question that the challenged restrictions, if enforced, [would] cause irreparable harm” [p. 5], referencing Elrod v. Burns 427 U. S. 347 (1976). Specifically, a majority of those wishing to attend church or synagogue services were barred from personal attendance, which was not the same as remote viewings. Attendees had missed out on important traditions in both faiths that required personal attendance.
Regarding public interest, the Court decided that granting the applications was not proven to harm the public. The State had not shown that public health would have been jeopardized by increased attendance or that a spread of COVID-19 has stemmed from attending religious services. The Court emphasized that they were not public health experts and would respect those with special expertise in the area. However, the Constitution could not be “put away and forgotten” [p. 5] during a pandemic, especially when restrictions “strike at the very heart” [p. 5] of the First Amendment. In essence, the Court could not overlook assessing the need for such severe measures.
Furthermore, the Court countered dissenting opinions which argued that relief should be withheld because the restrictions had recently changed and, thus, the circumstances were different. The dissents would allow the applicants to renew their requests if the Governor’s reclassification was reversed. The Court found this arrangement to be futile and unsuitable since the applicants would remain under the threat of reclassification by the Governor who “regularly change[d] the classification of particular areas without prior notice” [p. 6]. If such took place, it would transpire before judicial relief was obtained and attendees would be left waiting amidst Sabbath and daily Mass with no guarantee of the Court acting more swiftly.
As a result, the Court held that the applicants have made the showing needed to obtain relief and that there were no further reasons why they should risk suffering irreparable harm if another reclassification occurred. In turn, the Governor’s enforcement of the executive order was enjoined. Injunctive relief was granted pending disposition of the appeal in the US Court of Appeals for the Second Circuit and disposition of the petition for writ of certiorari.
Justice Gorsuch filed a concurring opinion
Justice Gorsuch underscored that Governments are “not free to disregard the First Amendment in times of crisis” [p. 1], noting that the First Amendment proscribed religious activities from being treated in a worse way than comparable secular activities.
By imposing capacity restrictions on religious institutions but not businesses deemed essential, the Governor’s restrictions conveyed that “it may [had been] unsafe to go to church, but it [was] always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians” [p. 2]. The disparity in treatment indicated that activities in religious institutions were not as essential, which constituted the kind of discrimination prohibited by the First Amendment.
Referencing South Bay Pentecostal Church v. Newsom 590 U. S. (2020), in which the Court deferred to executive orders in the pandemic’s early period based on “the newness of the emergency” [p. 3], Justice Gorsuch contended that similar reasoning could not be used. He articulated that the Constitution took a holiday during COVID-19 which “[could not] become a sabbatical” [p. 3].
Justice Gorsuch also reasoned that dismissing the case would not stop the Governor from reinstating the restrictions the next day and reversing them again when a new challenge was initiated. Thus, dismissing the case on this basis would amount to “just another sacrifice of fundamental rights in the name of judicial modesty” [p. 6]. Likewise, any delay because of rapidly changing circumstances would suggest that the zones could return to the restrictive measures, as indicated by the Governor and New York City Mayor, making it “inevitable” [p. 7] that the Court would have to hear this case.
He concluded that relief would “establish clear legal rules and enable both sides to put their energy to productive use, rather than devoting it to endless emergency litigation” [p. 7]. It would also allay misapprehensions over the Constitution during times of crisis that “have already been permitted to persist for too long” [p. 7].
Justice Kavanaugh filed a concurring opinion
Justice Kavanaugh noted that New York’s restrictions were “strict and inflexible” [p. 2]. They did not account for large churches and synagogues, and they were discriminatory because they did not apply to secular buildings in the same neighborhood. Overall, the State had not sufficiently justified the more severe treatment of houses of worship.
Whilst the State claimed that some secular businesses were treated less favorably than religious institutions, e.g., movie theaters, Justice Kavanaugh explained that such a justification regarding some secular business did not suffice under the Court’s precedents. Rather, the State had to justify why houses of worship were excluded from the favored class that the State had created.
He also clarified that judicial deference to state and local authorities in times of emergency or crisis did not mean “wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like [were] raised” [p. 3].
Finally, whilst changes were later made to the zone designation, the Executive Order itself was not amended. Likewise, the State did not deny that the applicants “face[d] an imminent injury today” [p. 4]. More generally, delaying the injunction made no sense because it would impose no harm on the State if the zones were not reclassified. If they were reclassified, the injunction would ensure protection and provide the parties with much-needed clarity.
Chief Justice Roberts filed a dissenting opinion
The Chief Justice outlined that he would not grant relief based on the procedural point that the State revised the designations of the zones in question. Referencing Nken v. Holder 556 U. S. 418 (2009), the applicants did not demonstrate their entitlement to “the extraordinary remedy of injunction” – simply delivering an order against the State “to not do what [it’s] not doing fail[ed] to meet that stringent standard” [p. 2].
Despite his procedural position, he went on to note that restrictions seemed “unduly restrictive” [p. 1] and it could be that they violated the Free Exercise Clause. His recognition of the case’s “serious concerns” [p. 2] distinguish his dissent from those of the other dissenting Justices.
The Chief Justice also rejected the characterization by Justice Gorsuch that the dissenting Justices were disregarding the Constitution amidst a pandemic.
Justice Breyer, joined by Justice Sotomayor and Justice Kagan, filed a dissenting opinion
The dissent maintained that the Court’s decision contradicted the ordinary governing law of an injunction being an “extraordinary remedy”– especially in this case where it would go against the lower courts’ decisions and precede full argument. Ultimately, if the Governor reimposed the disputed zones, applications could have been refiled with the Court deciding promptly.
Justice Breyer then detailed the recent impact and statistics of COVID-19 and its modes of transmission. He concluded that the nature of the pandemic and the need for rapid responses meant that there were “countervailing arguments based on health, safety, and administrative considerations” [p. 4] that had to be balanced against First Amendment challenges. Overall, determining a constitutional violation was not clear and it was also uncertain whether the balance of equities favored the applicants or whether the injunction was in the public interest. Amidst such uncertainties and changes, relevant precedent like South Bay suggested that elected officials had to have broad discretion.
Thus, whilst the Court of Appeals and State were urged to act expeditiously and in a manner that responsibly recognized religious interests, Justice Breyer found no “practical need” [p. 6] for an immediate injunction to achieve the desired objectives.
Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion
Referencing the prior cases like South Bay in which the Supreme Court “stayed its hand” [p. 1], Justice Sotomayor added that there was no reason to differ in these circumstances. She observed that the recent reclassification was ironically due to the restrictions’ success and that an injunction would prejudice the Governor’s ability to deliver similar success in the future.
Moreover, referencing the District Court’s reasoning and the rule established in South Bay, she noted that comparable secular institutions actually faced more severe restrictions than the religious institutions. In contrast to the focus on essential businesses by the majority, her dissent examined comparable secular gatherings like lectures, concerts, movie showings, etc. since those types of secular activities concerned large groups of people congregating closely for extended periods of time. These types of gatherings were the ones that medical experts identified as spreaders of COVID-19, not those highlighted by the majority. In other words, a false equivalence was made with secular essential businesses whose activities were fundamentally dissimilar.
Many of these secular gatherings were closed entirely and restrictions were applied to designated areas. In contrast to the previous Supreme Court cases where secular gatherings were simply capped and restrictions applied statewide, New York’s approach made it actually easier to view the restrictions as constitutional according to Justice Sotomayor.
Lastly, the fact that the restrictions singled out religious institutions was not reflective of discrimination against religious practice, but reflective of their preferential treatment. Consequently, the applicants could not “demand laxer restrictions by pointing out that [they] were already being treated better than comparable secular institutions” [p. 4]. In turn, the restrictions were not easily subject to strict scrutiny on this basis. Likewise, comments by the Governor did not warrant applying strict scrutiny as per the Court’s precedents.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression because the Court takes account of the Free Exercise Clause of the First Amendment in circumstances of a pandemic or emergency, diverging from previous decisions in the COVID-19 ambit. Specifically, restrictions placed on public gatherings was given strict scrutiny based on their disproportionate impact and were deemed not narrowly tailored enough to still accommodate freedoms under the Free Exercise Clause.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Referenced regarding irreparable harm, the Court found there was “no question that the challenged restrictions, if enforced, [would] cause irreparable harm” [p. 5].
Referenced by Justice Gorsuch to contend that similar reasoning could not be used in this case: the Constitution took a holiday during COVID-19 which “[could not] become a sabbatical” [p. 3].
Case significance refers to how influential the case is and how its significance changes over time.
Unlike previous cases referenced – South Bay United Pentecostal Church v. Newsom 590 U. S. (2020) and Calvary Chapel Dayton Valley v. Sisolak 591 U. S. (2020) – the restrictions imposed on public gatherings in this case were given strict scrutiny based on their disproportionate impact and were deemed not narrowly tailored enough to still accommodate freedoms under the Free Exercise Clause. Thus, the Supreme Court took account of the Free Exercise Clause in light of COVID-19 and decided to apply it accordingly, progressing from previous inclinations to defer to elected officials based on the novelty of the emergency. As summed up by Justice Gorsuch in his concurring opinion: “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical” [p. 3].
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