Read on Twitter
didn't I say something just today about how Roberts is a lib https://twitter.com/stevenmazie/status/1331826974432649218
The majority: Cuomo's restrictions violate the "minimum requirement of neutrality" to religion by singling out houses of worship in 'red' zones with a maximum attendance limit of 10, while 'essential' businesses have no limit on occupancy
In orange zone, disparate treatment even worse: limits of 25 persons for houses of worship, while even non-essential places of business have discretion over their capacity
For these reasons, the restrictions are not 'narrowly tailored' for strict scrutiny purposes. Particularly, 10 person restrictions are not necessary for houses of worship that can seat between hundreds and 1000 people.
Claim is not mooted just because complainants are no longer in orange/red zones (contra the dissent), as the state could again choose to burden the affected parties at any time, including potentially interfering with Shabbat services and Sunday mass
There are two concurring opinions (Kavanaugh/Gorsuch) and three dissenting opinions (Roberts/Sotomayor/Breyer). Yikes.
Gorsuch comes back to the list of businesses which are treated better under NY rules than churches and synagogues (also covered in the majority opinion): hardware stores, acupuncturists, bicycle shops, liquor stores, certain signage busineses....
Gorsuch: [I]t may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
Gorsuch: In far too many places, for far too long, our first freedom has fallen on deaf ears
Gorsuch notes how long the pandemic restrictions have been going on: "Even if the constitution has taken a holiday during this pandemic, it cannot become a sabbatical....[C]ourts must resumes applying the Free Exercise Clause."
Gorsuch says that Jacobson v. Mass. does not apply to these cases for two reasons (1) Jacobson did not deal with a strict scrutiny claim of discrimination on the basis of religion; (2) The content of restrictions at issue were not nearly as onerous as those placed on religion
Gorsuch also isn't having the dissenters' mootness arguments:
Kavanaugh makes a few technical points about predecessor cases (especially South Bay), but it really seems like he's writing to disagree with Roberts's mootness argument: Cuomo can't be allowed to moot the case by unrestricting the churches, then restrict them again
Roberts really just seems to be writing (a) to defend Gorsuch's attack on his invocation of Jacobson in South Bay (mentioned above, sort of), and (b) defend the libs from charges that they've completely abdicated their job in protecting freedom of religion
Breyer credits the lower court's finding that the proper comparison group for churches is theater performances, concerts, and the like and that churches are, in fact, treated *better* than other venues in the relevant group
Breyer thus focuses not only on the mootness claim, but also says that the requisite showing that the balance of equities favors an injunction have not been met, given the gravity of the pandemic; should, basically, defer to government officials and experts at this stage
Sotomayor: Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.
Sotomayor brings in Trump v. Hawaii: if the "Muslim ban" did not die from strict scrutiny despite Trump's statements, then surely statements by Cuomo which suggested he was particularly targeting Orthodox synagogues with his restrictions shouldn't count, either.
The most interesting parts, imo:
Gorsuch, for his ferocity in attacking the perceived free exercise violation
Roberts, because it really seems like he's mostly trying to prevent the case from becoming no more than a pitched battle in the culture war...and failing miserably
Gorsuch, for his ferocity in attacking the perceived free exercise violation
Roberts, because it really seems like he's mostly trying to prevent the case from becoming no more than a pitched battle in the culture war...and failing miserably
Is this a sign of things to come, at least on cases where Gorsuch's sui generis philosophy doesn't send him to the lib side?: Five cons pushing hard against lib politicians, three libs protesting ineffectually, and Roberts left unable to do anything about the spectacle?
