Global Legal Insights: The First Amendment vs. COVID-19

Although an injunction was issued, in depth hearing on the merits is scheduled to take place in the Court of Appeals of the Second Circuit on December 18, 2020.

A general view of the US Supreme Court building at sunset in Washington, US, November 10, 2020. (photo credit: REUTERS/ERIN SCOTT)
A general view of the US Supreme Court building at sunset in Washington, US, November 10, 2020.
(photo credit: REUTERS/ERIN SCOTT)
Last week, the Supreme Court of the United States issued a ruling analyzing the balance between the right for religious practice protected under the First Amendment and the government’s power to exercise restrictions due to the ongoing COVID-19 pandemic. This decision will likely impact the debate in other jurisdictions (including Israel) between the balance between preservation of religious rights and fight against Covid-19.
Interestingly, the arguments in support of the religious practice were filed against the governor of New York, Andrew Cuomo, in two separate petitions raised by the Roman Catholic Diocese of Brooklyn and the Jewish orthodox community Agudat Israel. Petitioners challenged the Governor’s executive order enforcing severe restrictions on attendance at religious services in areas classified as “red” (allowing maximum attendance of ten people) to areas classified as “orange” permitting maximum attendance of 25 people.
Agudat Israel asserted that the NY governor, specifically targeted the Orthodox Jewish community and set the red and orange geographical boundaries secure that heavily Orthodox areas were included. In red zones, where a synagogue or church may not admit more than ten persons, businesses categorized as “essential” may admit as many people as they wish.
In the concurring decision of Justice Neil Gorsuch, the court criticized the governor’s decision: “ In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
The majority opinion ruled: “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.”
Justice Gorsuch further opined: “It is time – past time – to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
The majority opinion, issuing an injunction against the governor’s executive order, and the dissenting opinion differed among others on the restraint between the executive and judicial branch. Per Justice Brett Kavanaugh; “Federal courts therefore must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic... But 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.”
However, Chief Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan, in dissenting opinions, emphasizing of the broad discretion of the legislative branch opined that: “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the states.” The elected branches of state and national governments can marshal scientific expertise and craft specific policies in response to “changing facts on the ground.” And they can do so more quickly than can courts.”
Although an injunction was issued, in depth hearing on the merits is scheduled to take place in the Court of Appeals of the Second Circuit on December 18, 2020.
International attorney Amit Ben-Yehoshua is licensed to practice law in Israel and California and served as the vice chair of the China Committee of the American Bar Association. Amit can be reached at [email protected] & www.amit-law.com