WASHINGTON — In recent months, churches in California and Nevada asked the Supreme Court to lift government restrictions on attendance at religious services meant to address the coronavirus pandemic. The churches lost.
The vote in both cases was 5 to 4, with Chief Justice John G. Roberts Jr. joining what was then the court’s four-member liberal wing. One of those liberals, Justice Ruth Bader Ginsburg, died in September. Her successor, Justice Amy Coney Barrett, joined the court last month.
It will not take long to assess the significance of that switch.
On Thursday, the Roman Catholic Diocese of Brooklyn filed an emergency application asking the Supreme Court to lift restrictions imposed by Gov. Andrew M. Cuomo of New York. The case is broadly similar to the earlier ones. The outcome, even as the pandemic is worsening, may be quite different.
The general question in all of the cases is whether government officials or judges should calibrate responses to the public health crisis.
One view, expressed by Chief Justice Roberts in a concurring opinion in the California case, is that officials charged with protecting the public “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people.”
A few hours after the diocese filed its application, Justice Samuel A. Alito Jr. delivered a slashing speech to a conservative legal group that expressed the opposite view. He had dissented in both of the earlier cases, and his speech echoed points he had made in the one from Nevada.
“Whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes,” Justice Alito said on Thursday, rejecting the view that “whenever there is an emergency, executive officials have unlimited, unreviewable discretion.”
The court is likely to rule on the dispute from Brooklyn in the next week or so. The case may be the first in which Justice Barrett’s vote changes the court’s direction.
The restrictions in Brooklyn are severe. In shifting “red zones,” where the coronavirus risk is highest, no more than 10 people may attend church services. In slightly less dangerous “orange zones,” attendance is capped at 25. This applies even in churches that can seat more than 1,000 people.
Even as he ruled against the diocese, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn praised it as “an exemplar of community leadership” that had been “enforcing stricter safety protocols than the state required.”
Lawyers for Mr. Cuomo agreed, telling an appeals court that the diocese “has introduced laudable social-distancing and hygiene measures.”
The diocese has said it intends to continue to limit attendance to 25 percent of its churches’ capacities and would accept other limitations, such as doing away with singing by congregants and choirs.
Judge Garaufis, who was appointed by President Bill Clinton, said the case was a difficult one. But he concluded that he would defer to the governor. “If the court issues an injunction and the state is correct about the acuteness of the threat currently posed by hot spot neighborhoods,” the judge wrote, “the result could be avoidable death on a massive scale like New Yorkers experienced in the spring.”
In refusing to block the governor’s order while the diocese’s appeal went forward, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit drew on Chief Justice Roberts’s concurring opinion in the California case. Since the restrictions on churches were less severe than those on comparable secular gatherings like theaters, casinos and gyms, the majority wrote in an unsigned opinion, they did not run afoul of constitutional protections for religious freedom.
The members of the majority were Judge Raymond J. Lohier Jr., who was appointed by President Barack Obama, and Judge Jed S. Rakoff, who ordinarily sits on Federal District Court in Manhattan and who was appointed by Mr. Clinton.
Judge Michael H. Park, who was appointed by President Trump, dissented. He said Governor Cuomo’s order discriminated against houses of worship because it allowed businesses like liquor stores and pet shops to remain open without capacity restrictions.
In asking the Supreme Court to step in, lawyers for the diocese argued that its “spacious churches” were safer than many “secular businesses that can open without restrictions, such as pet stores and broker’s offices and banks and bodegas.” An hourlong Mass, the diocese’s brief said, is “shorter than many trips to a supermarket or big-box store, not to mention a 9-to-5 job.”
Lawyers for Mr. Cuomo said gatherings like those at churches and theaters were different from shopping trips. “The state’s limits on mass gatherings have consistently recognized that the risk of transmitting Covid-19 is much greater at gatherings where people arrive and depart at the same time and congregate and mingle for a communal activity over an extended period of time,” the governor’s appeals court brief said.
Judge Park, the dissenting appeals court judge, twice served as a law clerk to Justice Alito, once on the federal appeals court in Philadelphia and once on the Supreme Court. His dissent anticipated the remarks his former boss delivered on Thursday.
“The pandemic,” Justice Alito said, “has resulted in previously unimaginable restrictions on individual liberty.”
“This is especially evident with respect to religious liberty,” he added. “It pains me to say this, but in certain quarters religious liberty is fast becoming a disfavored right.”
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