Washington’s COVID-19 restrictions on religious institutions likely won’t be affected by a Supreme Court ruling late Wednesday that blocked New York’s pandemic rules on churches and synagogues .
The decision marks a shift in the court that could lead to similar decisions in lawsuits in other states.
The justices split 5-4, temporarily barring New York from enforcing restrictions that capped attendance at religious gatherings to 10 people and 25 people, depending on how a location is rated for COVID-19 risk. The court’s three liberal justices and Chief Justice John Roberts dissented.
In New York, churches and synagogues in designated Red and Orange zones, based on amount of virus spread, could not have more than 10 and 25 people, respectively.
The Diocese of Brooklyn and Agudath Israel of America filed a lawsuit against New York Gov. Andrew Cuomo, arguing houses of worship were being unfairly singled out by his executive order.
The main dispute in the case was how to compare different industries, such as religious gatherings, businesses and concert venues, and how to keep their COVID-19 restrictions neutral, said Mary Pat Treuthart, law professor at Gonzaga University.
The unsigned majority opinion compares synagogues or churches to other “essential” businesses, specifically mentioning acupuncture facilities, campgrounds and garages.
Justices determined it was unfair to limit synagogues and churches to 10 people while businesses characterized as essential and in the same neighborhoods were allowed to admit as many people “as they wished.”
In a concurring opinion, Justice Neil Gorsuch argued Cuomo’s restrictions discriminate against churches and synagogues.
“Who knew public health would so perfectly align with secular convenience?” Gorsuch wrote.
In her dissent, Justice Sonia Sotomayor compared houses of worship to concert venues and movie theaters, which were not allowed to operate at all due to COVID-19.
“Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily,” Sotomayor wrote.
Laws must be crafted with neutrality in mind, Treuthart said, and the court decided New York’s restrictions were not neutral, meaning they unfairly affected houses of worship.
“We should be able to come up with some neutral regulations,” Treuthart said, “and I think that’s what’s been happening in Washington state.”
Gov. Jay Inslee announced two weeks ago new restrictions for indoor gatherings, including religious ones. Religious services are limited to 25% of indoor capacity, or not more than 200 people, whichever is fewer. Face coverings must be worn at all times, and the congregation is prohibited from singing. No choir, band or ensemble can perform, but soloists are allowed.
If a similar court case from Washington made it to the Supreme Court, it would have to prove that Inslee’s regulations were not neutral, but Treuthart said she believes Inslee’s regulations were crafted with an eye toward neutrality.
The 25% capacity is the same as for indoor shopping, offices and personal services.
“Gov. Inslee remains committed to ensuring that all Washingtonians have the right to worship while being safe and healthy,” Tara Lee, Inslee’s communications director, wrote in an email Friday. “Churches, synagogues, mosques and other places of worship can operate but at reduced capacity. This still allows for religious services (and many are providing online services), while not further increasing the spread of Covid.”
This court decision only affects New York but could indicate how the court will rule in other cases involving COVID-19 restrictions and houses of worship. At least 20 other states have similar cases pending.
In two cases in California and Nevada, the court ruled 5-4 to leave pandemic-related capacity restrictions in place. Justice Ruth Bader Ginsburg voted in favor of leaving the restrictions. Her successor, however, Justice Amy Coney Barrett, voted against them, signaling a possible flip in the court.
With so many other decisions in the pipeline regarding this issue, Treuthart said there is a concern that many will be overturned.
“I wouldn’t make a statement that’s quite that strong because I do think it’s possible to craft regulations that apply more broadly and are less problematic,” she said.
If a state’s restrictions are mostly neutral across the board, such as having the same capacity limit for similar indoor gatherings, Treuthart said she believes they would be upheld.
Even in New York, though, the decision is less impactful than many might think, as the churches involved in the suit are no longer in the Red and Orange zones but the less restrictive Yellow zone.
“Why rule on a case that is moot and come up with a different decision than you did several months ago on the same issue?” Cuomo said in a conference call with reporters, according to the Associated Press. “You have a different court. And I think that was the statement that the court was making.”
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