Roman Catholic Diocese Part III: The Court Rejects the “Comparator” Approach to the Free Exercise Clause
This post is the third installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.” Part II focused on Jacobson v. Massachusetts.
The Chief Justices’s South Bay concurrence established a predictable, and easy to apply test with respect to the Free Exercise Clause. Justice Sotomayor described that test in her dissent:
South Bay and Calvary Chapel provided a clear and workable rule to state officials seeking to control the spread of COVID–19: They may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict.
The Diocese majority rejects the comparator approach. Indeed, the Court tweaks what “neutrality” means. I think this analysis may augur the future of Fulton. But the Court stops short of adopting Justice Kavanaugh’s “most favored right” standard. Let’s walk through the Court’s analysis.
First, the Court hints at Agudath Israel’s targeting arguments.
As noted by the dissent in the court below, statements made in connection with the challenged rules can be viewed as targeting the “‘ultra-Orthodox [Jewish] community.'” (Park, J., dissenting). But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment
But the Court quickly abandons the targeting argument. I had some concerns that the Court would adopt a Masterpiece-style analysis in light of Governor Cuomo’s comments about orthodox Jews. That ruling would not have extended beyond New York.
In dissent, Justice Sotomayor drew an analogy to Trump v. Hawaii. How could Cuomo’s statements be targeting if Trump’s statements were not targeting?
The Governor’s comments simply do not warrant an application of strict scrutiny under this Court’s precedents. Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,” originally conceived of as a “‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.'” Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 27). If the President’s statements did not show “that the challenged restrictions violate the ‘minimum requirement of neutrality’ to religion,” ante, at 2 (quoting Lukumi, 508 U. S., at 533), it is hard to see how Governor Cuomo’s do.
New York’s lawyer actually cited Trump v. Hawaii before the District Court to defend Cuomo’s statements.
Second, the Court found that New York’s orders are not “neutral.” Therefore Smith‘s rational basis test does not apply. Rather, strict scrutiny applies.
Because 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.
Third, the Court ruled that New York’s approach is not “narrowly-tailored.”
Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “narrowly tailored.”
Fourth, the Court tried to reconcile its opinion with South Bay. But it did so in a very subtle way. The majority explained that the New York orders were far more “restrictive” than the orders at issue in South Bay. But the Court did not say that the South Bay order was neutral. In other words, the per curiam does not embrace the core element of Chief Justice Roberts’s comparator approach:
[New York’s orders] are far more restrictive than any COVID–related regulations that have previously come before the Court,2 much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.
FN2: See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) (directive limiting in-person worship services to 50 people); South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020) (Executive Order limiting in-person worship to 25% capacity or 100 people, whichever was lower).
This footnote may have been designed to coax the Chief to join the per curiam opinion. It would have given him an easy out. But he didn’t.
Justice Kavanaugh’s concurrence extended a similar olive branch to the Chief. He wr
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