The 5-4 decision Wednesday, is in response to a request for an emergency injunction by the Roman Catholic Diocese of Brooklyn and the Agudath Israel of America, an Orthodox Jewish group, against restrictions limiting services to ten people in some areas and 25 people in others. Newly minted Justice Amy Coney Barrett joined Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas in the majority; while Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor dissented.
The decision reads in part
Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.
The applicants have clearly established their entitlement to relief pending appellate review. They have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.
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In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.
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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.” They are far more restrictive than any COVID–related regulations that have previously come be- fore 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.
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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.
In a concurring opinion, Justice Neil Gorsuch wrote that the unfair application of restrictions on churches and synagogues but not “hardware stores, acupuncturists, and liquor stores, bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents” was a clear violation of the free exercise clause in the First Amendment.
"Who knew public health wouuld so perfectly align with secular convenience?" Gorsuch snarked.