Shortly before midnight on November 25, a fractured Supreme Court of the United States in Roman Catholic Diocese of Brooklyn v. Cuomo temporarily blocked New York state pandemic rules on attendance at churches and synagogues. New York Governor Andrew Cuomo scoffed at the ruling: “It doesn’t have any practical effects.”
Contrary to Gov. Cuomo’s shrug, the Diocese of Brooklyn decision does have practical effects on government officials who draft pandemic rules and litigants who challenge them. Simply put, both rules and challenges must be as “precise and as narrow as possible.” Because the Supreme Court has just reminded courts to look for that narrow precision.
The First Amendment balances societal needs against free expression rights, even during an emergency. In a crisis, governments want to act quickly and broadly, but the courts are not going to ignore the First Amendment when governments say “trust us.” Timing and precision matter both in drafting the government’s rules and in challenging them.
Or as the Supreme Court majority put it: “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. But even in a pandemic, the Constitution cannot be put away and forgotten.” And Justice Kavanaugh pointed out: “judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”
To see how this works, look at three different cases, all involving Free Exercise challenges to pandemic rules: Last May, in South Bay United Pentecostal Church v. Newsom, the Court refused to block California’s rules that prohibited church attendance of more than 100 people. Last week, in Diocese of Brooklyn, the Court blocked similar rules. Three days later, in Spell v. Edwards, Justice Alito, a member of the majority in Diocese of Brooklyn, denied a church’s request to block similar Louisiana rules, without even asking for opposing briefs. Why the difference? Timing and precision in the rules and the challenges.
The basic rule at play in Diocese of Brooklyn is when “the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they must satisfy ‘strict scrutiny,’ and this means that they must be ‘narrowly tailored’ to serve a ‘compelling’ state interest.” These complex analyses apply differently at different times: early in a crisis, when information is scarce and the need for some action is urgent, the government gets more leeway than later in a crisis when much more is known and interim steps can provide some relief even if a final remedy is not yet available.
That is the difference between Diocese of Brooklyn and other decisions that permitted governments to impose more sweeping restrictions. By now, the religious institutions challenging the rules have had months to comply with changing scientific and medical recommendations, and, according to the trial judge here (whose judgements are not easily deflected at this preliminary stage), have done an exemplary job. The Court simply told government officials that expectations of more careful and precise drafting and enforcement are growing ever stronger. The same evolution has occurred in recent cases involving protests and riots in American cities over the last few months; earlier decisions gave more deference to law enforcement, while later decisions have been more nuanced in applying the First Amendment’s right of peaceable assembly.
That careful level of precision and evidence in First Amendment questions is the principal lesson for rules drafters and challengers alike in Diocese of Brooklyn. Even briefs from the American Medical Association and other groups with statistical projections were not enough to convince the Court that the unrefuted records of plaintiffs’ compliance and lack of infections should be disregarded. And, though New York argued that it had moved those neighborhoods into a less restrictive set of pandemic rules, the state refused to say that it wouldn’t ignore that required level of precision in the future.
So, what is the required level of precision? The first rule is “don’t speculate.” In Federal Election Commission v. McCutcheon, the Court said: “we have never accepted mere conjecture as adequate to carry a First Amendment burden.” That’s hard with a novel virus, but there must be some actual evidence that the speculative justification is soundly based, not too broad, and applicable to each person or entity subject to the proposed rule. And challengers must demonstrate, with a reasonable proffer of proof, that they are outside the justification, but were included anyway.
In other words, not “let us out because we’re religious,” but “let us out because we, specifically, don’t represent the danger you are addressing.” Which was amply demonstrated in Spell v. Edwards, when the Louisiana church unsuccessfully argued an overly-broad legal theory: “The First Amendment places the decision of whether to assemble solely within the jurisdiction of the church, not the State.” Diocese of Brooklyn does not create new exemptions for religious institutions; it simply requires careful consideration of existing and new standards. Even in a pandemic.
As National Review editorialized: “all the Court does is reiterate the law. Americans have a right to worship as they see fit, and the government may encroach on that right only in limited circumstances, which don’t include targeting churches for unjustifiably poor treatment the way Cuomo’s rules do.”
It is possible to draft such precise rules without unduly infringing on constitutional rights. For example, Washington state Governor Jay Inslee recently released a new restriction on medical and dental elective surgeries, which was eight, single-spaced pages long, with numerous provisions tying restrictions to specific local conditions. This rule will likely require onerous legal and medical judgments in fashioning compliance standards, but is also more likely to survive constitutional challenge than New York’s rule that exempted “big box” stores but not synagogues without considering compliance with health rules in those facilities. After Spell v. Edwards, Louisiana Gov. John Bel Edwards issued a statement pointing out how carefully he considered the effect of his proposed rule on churches.
This is not a new requirement or one limited to Free Exercise cases; on Thanksgiving Day, the Third Circuit Court of Appeals rejected the Trump re-election campaign’s challenge to Pennsylvania vote counting methods essentially because of a failure to provide specific evidence. Thus, Diocese of Brooklyn repeats what the Court has long required when governments seek emergency powers that contravene the First Amendment: “if you ask us to trust you in a crisis, we may give you more leeway in your rulemaking and enforcement at the beginning, but be very careful and precise as the crisis proceeds.”