In response to the COVID-19 pandemic, New York Governor Andrew Cuomo issued an executive order limiting public gatherings in color-coded zones. In a red zone, religious services were limited to ten people, while in orange zones the gatherings could total 25 attendees. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, certain religious institutions challenged that order as violating their First Amendment rights, and they sought a preliminary injunction to stay enforcement of the order while litigation progressed. The lower courts declined to grant that injunction, but the Court, in a 5-4 per curiam decision, granted that relief, finding that the religious groups were likely to prevail on their claims, and would suffer irreparable harm if the injunction was not granted. The majority applied strict scrutiny to the order, holding that it treated “houses of worship much more harshly than comparable secular facilities,” and noting that the governor’s order allowed certain seemingly non-essential businesses, like acupuncturists and liquor stores, to operate without impediment, while strictly limiting religious exercise.

Although the order in question had been since changed to allow religious institutions to operate at 50% capacity, the Court decided the matter was not moot because of the threat of future imposition as circumstances changed. Justice Gorsuch filed a concurrence attacking the Chief Justice’s earlier reliance on a 1905 decision issued during the smallpox epidemic to thwart earlier religious challenges to COVID restrictions, arguing that the injunction was needed to prevent the governor from imposing and then rescinding unconstitutional restrictions to avoid judicial review.

Chief Justice Roberts filed a dissent arguing that there was no need to enter the injunction due to the change in the governor’s order, and defended his earlier opinion as “uncontroversial,” although he agreed that the restrictions imposed in this case were distinguishable from the earlier ones considered and “may well . . . violate the Free Exercise Clause.” Justice Kavanaugh filed a concurrence expressing agreement with the Chief Justice about concerns with the order’s constitutionality but disagreed that any injunctive relief would now be moot.

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, arguing that injunctive relief was moot and that political officials should have “broad” discretion in such circumstances. Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the governor’s order did not treat houses of worship more restrictively than secular businesses.

A link to the opinion is here: https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf