John Yoo: Supreme Court rejection of Cuomo’s COVID restrictions on worship upholds religious liberty

The powerful desire for religious freedom goes back to ancient times. We celebrated it on Thanksgiving when we marked 400 years since the Pilgrims landed at Plymouth Rock to escape religious persecution. We should also welcome a Supreme Court decision issued Wednesday night that is an important victory for religious liberty today.

The Supreme Court’s 5-4 ruling overturned New York state’s strict limit on attendance at religious services during the coronavirus pandemic. The high court sided with the Roman Catholic Diocese of Brooklyn and the Jewish group Agudath Israel of America in a victory for the liberty of all.

The decision by the Supreme Court temporarily blocked New York’s effort to subject churches, synagogues, mosques and other houses to worship to strict 10-person or 20-person limits on occupancy, depending on the severity of COVID-19 in the area where a house of worship is located.

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Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett agreed that New York Gov. Andrew Cuomo’s order infringed on the Constitution’s First Amendment right of religious freedom. This was the first case in which Barrett, who joined the court Oct. 27, cast a tie-breaking vote.

 “In recent months, certain other Governors have issued similar edicts,” Gorsuch wrote in a concurring opinion. “At the flick of a pen, they have asserted the right to privilege res­taurants, marijuana dispensaries, and casinos over churches, mosques, and temples. In far too many places, for far too long, our first freedom has fallen on deaf ears.”

While courts have deferred to the government’s emergency measures during the coronavirus pandemic, New York violated the Constitution by singling out religious groups for the most severe restrictions, the Supreme Court found.

The same occupancy limits did not apply to “essential” businesses such as liquor stores, acupuncture parlors or bike stores, which had to comply with social distancing and masking rules but did not have such extreme limits on occupancy.

 Once the government chose to single out religious groups, it had to show that it was advancing a “compelling government interest” and used the most “narrowly tailored” means possible, according to the Supreme Court.

The five justices in the majority found that Cuomo could produce “no evidence” that religious groups “have contributed to the spread of COVID-19” and could not explain why less-intrusive measures, such as social distancing, could not work instead at houses of worship.

Critics will accuse conservatives of playing politics, because during the summer and fall the Supreme Court refused to review strict coronavirus restrictions. Chief Justice John Roberts had joined with the liberal justices in May to defer to California Gov. Gavin Newsom’s strict restrictions on houses of worship in California, for example.

But with Justice Barrett now on the high court, conservatives need not rely on the inconstant Roberts to protect religious freedom.

"At that time, COVID had been with us, in earnest, for just three months,” Justice Gorsuch wrote, referring to the May decision by the Supreme Court. “Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms.” 

With those earlier decisions “nonbinding and expired,” Gorsuch said that “courts must resume applying the Free Exercise [of religion] Clause” in the First Amendment.

As America’s economy begins to stagger again in the face of a new wave of coronavirus cases and lockdowns, our courts will now face the question whether to extend the Supreme Court’s newfound attitude toward religion to other freedoms — most importantly, our freedom to earn a living.

In California, for example, government officials have responded to a second COVID-19 wave by shutting down all Los Angeles restaurant operations except for take-out — including dining outdoors. Even the most minimal review by the courts should lead to a rejection of these clumsy, ill-conceived measures.

What should be done?

First, courts should examine the costs of these coronavirus restrictions.

Take the Los Angeles shutdown. According to a lawsuit filed by the California Restaurant Association, the lockdown will cost 700,000 people their jobs and force thousands of businesses to close. That number of unemployed restaurant workers is larger than the population of Wyoming and the population of Vermont. 

The liberals who dominate California government loudly proclaim that they care about income inequality, racism and poverty. But that’s not true when it comes to lockdowns. Of the 700,000 restaurant workers who will lose their jobs, 75% earn less than $50,000 per year. And at least 60% of these workers are people of color.

As the California Restaurant Association lawyer, Eric George said: “These economically fragile workers have already gone through the whipsaw of government shutdowns and re-openings, and have gone to extraordinary lengths just to survive in the face of constantly changing requirements dictated by state and county officials.”

Second, courts should demand that governments like California’s show they can justify their coronavirus restrictions with real evidence.

Notoriously, as attorney George shows, Los Angeles did not present any public, scientific justification for its sudden shutdown of restaurants. When we examine California’s own evidence, however, the government’s justifications disappear.

The state’s own evidence shows that only 3.1 percent of new non-residential COVID-19 cases originate from restaurants — far below other sectors such as groceries, manufacturing and transportation.

According to George, government officials themselves “have identified more COVID-19 cases at a single Northrop Grumman facility in Palmdale [Calif.] than in the entire restaurant sector.”

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Third, we should remember that governments don’t have the resources to enforce these lockdowns.

Governments depend on the voluntary cooperation of a citizenry that accepts the reasonableness of these emergency measures. Police have their hands full protecting us from violent criminals. They would be unable to devote sufficient time to that important task if they had to devote time and energy to snooping on businesses, homes and houses of worship.

When Gov. Newsom refuses to obey the rules he set to bar large gatherings (he recently went to dinner at a high-end French restaurant with lobbyists) or sends his kids to private school while public schools remain shut, he undermines the moral legitimacy necessary for widespread voluntary compliance.

Courts will defer to states during a public health emergency. But as the emergency continues, governments will have to provide better justifications for severe restrictions on individual liberty.

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While lockdowns may have made sense early during the pandemic when we knew little about COVID-19, shutdowns now are severely interfering with the First Amendment right of religious freedom and the economic liberty of business owners.

Courts will begin to demand some reasonable basis for the lockdowns, and as they do, they will likely find few good arguments for restrictions like those that have descended upon Los Angeles and New York.

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