November 30, 2020
Decided November 25, 2020
Roman Catholic Diocese of Brooklyn, New York v. Cuomo, No. 20A87
On Wednesday, November 25, 2020, the Supreme Court ruled in favor of Gibson Dunn client The Roman Catholic Diocese of Brooklyn, New York, holding that provisions of a New York Executive Order that imposed “severe” fixed-capacity restrictions on attendance at religious services likely violate the Free Exercise Clause of the First Amendment, were causing irreparable harm, and must be enjoined pending appeal.
New York Governor Andrew Cuomo’s Executive Order 202.68 was issued on October 6, 2020, in response to localized upticks in COVID-19 cases. The Executive Order imposes 10- and 25-person fixed-capacity caps on “house of worship” attendance in so called “red” and “orange” zones throughout New York State.
On October 8, The Roman Catholic Diocese of Brooklyn, New York (the “Diocese”), represented by Gibson Dunn partners Randy M. Mastro and Akiva Shapiro, filed suit in the U.S. District Court for the Eastern District of New York. The Diocese alleged that the fixed-capacity restrictions—which applied to “houses of worship” alone, while many secular businesses in those same “zones” remained free to operate without restriction—violated the Free Exercise Clause as applied.
Despite finding that the Diocese had adequately alleged irreparable harm, the district court declined to enter a preliminary injunction. A divided Second Circuit panel denied the Diocese’s motion for an injunction pending appeal, along with a parallel motion brought by an Orthodox Jewish organization and synagogues. Among other things, the lower courts held that the Executive Order was facially neutral because some secular businesses were shut down entirely, and that the State’s interest in combating the pandemic outweighed any harm to religious organizations and their congregants.
Whether the provisions of Executive Order 202.68 that limit in-person “house of worship” attendance to 10 or 25 people, but allow numerous secular businesses to operate without capacity restrictions, violate the First Amendment’s Free Exercise Clause and should be enjoined on an emergency basis pending appeal.
Yes. The Diocese made a strong showing that the challenged restrictions likely violate the First Amendment because they single out houses of worship for especially harsh treatment. And denying emergency relief would cause irreparable injury, while granting such relief would not harm the public interest, justifying the issuance of an injunction pending appeal. In a companion order, the Court granted the same relief to the synagogues.
“[E]ven in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Per Curiam Opinion of the Court
What It Means:
The Court’s opinion is available here.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact Randy M. Mastro (+1 212.351.3825, firstname.lastname@example.org) or Akiva Shapiro (+1 212.351.3830, email@example.com), the Gibson Dunn partners representing the Diocese, or the following practice leaders:
Appellate and Constitutional Law Practice
|Allyson N. Ho
|Mark A. Perry
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