Constraining Cuomo

The Second Circuit Court of Appeals has ruled in favor of the Agudath Israel and the Roman Catholic Diocese of Brooklyn, holding that Emmy Award-winning Governor Cuomo’s COVID-19 inspired numerical capacity limits on their religious services violate the free exercise clause of the First Amendment. The November 25 Supreme Court order (5-4) granted an emergency injunction constraining Cuomo from enforcing the limits pending review by the Second Circuit. The Supreme Court’s per curiam opinion is posted online here along with the concurring and dissenting opinions.

In its per curiam opinion the Supreme Court found that plaintiffs were likely to succeed on the merits because Cuomo’s order was not neutral on its face and imposed greater restrictions on religious activities than on other activities Cuomo deemed “essential.” It is a critically important Supreme Court decision that we noted at the time.

By terms of the Supreme Court order the injunction granted was to continue until the Second Circuit decided the case on the merits. The Second Circuit decided the case yesterday in Agudath Israel of America v. Cuomo. Applying the principles set forth in the November 25 Supreme Court decision, the Second Circuit ruled 3-0 in favor of the free exercise claims with respect to the numerical capacity limits while reserving the legality of the percentage capacity limits for the district court on remand. The Second Circuit clearly anticipates those limits to fall as well under the applicable analysis.

The brief Reuters story on the ruling reduces the case to its nub:

Circuit Judge Michael Park said the plaintiffs established irreparable harm by showing the restrictions impaired their free exercise of religion.

He also said “no public interest is served by maintaining an unconstitutional policy when constitutional alternatives are available to achieve the same goal.”

The voluble Governor Cuomo had no immediate comment on the ruling for Reuters. I believe Cuomo has previously stated that this is all ancient history.

The three Second Circuit judges include two Trump appointees and one Bush appointee, but even Democratic judges outside the Ninth Circuit follow Supreme Court rulings in the cases before them. The case raises issues that are among those closest to our heart. Our fundamental rights on these issues and other basic freedoms are at best hanging by a thread. It is worth taking a time out to pause over this important Second Circuit decision.

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