Nov 17, 2020

Americans United for Separation of Church and State urged the U.S. Supreme Court to protect New York residents from the spread of COVID-19 by rejecting challenges from religious groups to a public health order limiting large gatherings.

Americans United, joined by 12 religious and interfaith organizations, filed two amicus briefs with the court to explain that the Constitution does not prohibit New York from including houses of worship and religious services in temporary restrictions on large, in-person gatherings, and that it would be harmful to the public to exempt religious gatherings from the order. The briefs were filed Nov. 16 in in Roman Catholic Diocese of Brooklyn v. Cuomo and Nov. 17 in Agudath Israel of America v. Cuomo.

The briefs dispute the religious organizations’ contention that New York’s order shows animus toward religion. As noted by two district-court judges, the order is based on science, applies to a range of secular and religious activities, and does not single out religious practice. In fact, the order offers special solicitude – not disfavor – for religious institutions by restricting their worship services less than comparable secular gatherings.

“With coronavirus cases spiking across New York and the country, we must follow the advice of public health experts and limit large gatherings. We know from countless ‘super-spreader’ events that COVID-19 doesn’t discriminate between religious and secular gatherings; in fact, there are numerous cases of infections at houses of worship leading to major outbreaks that spread into surrounding communities,” said Rachel Laser, president and CEO of Americans United. “The U.S. Supreme Court should let stand state guidelines aimed at protecting people amidst an unprecedented public health crisis – as the court has already done twice this year.”

By 5-4 votes in May and July, the Supreme Court declined to grant emergency injunctions to houses of worship seeking exemptions from public health orders in California and Nevada. However, those decisions were issued before Justice Amy Coney Barrett joined the bench. As a judge on the 7th U.S. Circuit Court of Appeals, Barrett joined a September opinion that allowed Illinois to exempt religious services from the state’s public health order, though that opinion did not address whether Illinois was required to do so.

It seems clear that the New York religious organizations are hoping that the change in the composition of the court will lead to a result different from those in the California and Nevada cases. And those hopes may have been bolstered by a speech given last week to the Federalist Society by Justice Samuel Alito, one of the dissenters in the California and Nevada cases, in which he expressed contempt for COVID-19 public health efforts.

“Gov. Cuomo’s order does not violate religious freedom; it ensures religious freedom is not misused to endanger people’s lives,” Laser said. “As Thanksgiving and many religious holidays approach, we sympathize with the families and faith communities yearning to come together to celebrate, worship and find solace at the end of a challenging year. But religious freedom should not be wielded as a sword that results in harm to the community. The Supreme Court has never before permitted such misuse of this fundamental right. Now, in the midst of a devastating pandemic, is no time for the court to abandon that principle.”

Added Alex J. Luchenitser, associate vice president & associate legal director of Americans United: “Upholding public-health restrictions now will benefit the precious right of religious freedom, not harm it. Controlling the pandemic today will enable houses of worship to safely resume regular religious services sooner, while ensuring that more congregants are alive to engage in worship in the future.”

Joining Americans United on the amicus briefs are Bend the Arc: A Jewish Partnership for Justice, Central Conference of American Rabbis, Covenant Network of Presbyterians, Disciples Center for Public Witness, Disciples Justice Action Network, Equal Partners in Faith, General Synod of the United Church of Christ, Interfaith Alliance Foundation, Methodist Federation for Social Action, National Council of the Churches of Christ in the USA, Reconstructionist Rabbinical Association, and Union for Reform Judaism. The briefs were authored by Luchenitser, AU Vice President & Legal Director Richard B. Katskee, and Legal Fellow Sarah R. Goetz.

So far this year, Americans United has filed 38 other amicus briefs in courts across the country in similar cases involving requests for religious exemptions from COVID-19 public health orders.

AU’s Amicus Brief in Roman Catholic Diocese of Brooklyn v. Cuomo.

AU’s Amicus Brief in Agudath Israel of America v. Cuomo.

Americans United is a religious freedom advocacy organization based in Washington, D.C. Founded in 1947, AU educates Americans about the importance of church-state separation in safeguarding religious freedom. Learn more at www.au.org