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Supreme Court Backs Religious Challenge To New York COVID-19 Restrictions

STEVE INSKEEP, HOST:

On the surface, a Supreme Court ruling just before the holiday changed nothing at all. The court struck down pandemic safety measures that New York Governor Andrew Cuomo applied to houses of worship. Cuomo had already removed those restrictions, so the ruling tells him to stop doing something that he had already stopped doing. Yet an expanded conservative majority on the Supreme Court felt passionately that it was important to speak now, and the passion comes through when there are multiple opinions on religious freedom, the Constitution and public safety. Robin Fretwell Wilson is with us to discuss this. She is director of the Institute of Government and Public Affairs at the University of Illinois. Good morning.

ROBIN FRETWELL WILSON: Good morning, Steve.

INSKEEP: Would you just remind us what are the basics of this case in New York?

WILSON: Well, I mean, you've opened it really well. The basics are that there is an executive order from the governor that had been put in place. We're almost 10 months into the shuttering of parts of the economy. That order ultimately gets backwalked, but the court is very, very concerned about the fact that it is the most restrictive that has come before the court. There were two preceding cases before this newly recomposed court, one out of California and another out of Nevada, where the limits were not nearly so extreme. And every person writing on the court acknowledges that fact, that this was the most extreme.

INSKEEP: Yeah. We're talking about the Roman Catholic Diocese of Brooklyn, a couple of Orthodox Jewish synagogues who said, wait a minute, these restrictions for a while said that we could only have religious services with, I think, 10 people, and later it was 25 people. And these are institutions that are accustomed to having hundreds in rather large cathedrals and synagogues that can hold hundreds or even more than that. Yet it seemed, when I read the 33 pages of opinions, to be a narrow difference. These religious institutions didn't claim a total exemption from health regulations. They said they just wanted to be treated equally. Governor Andrew Cuomo didn't even maintain the rules. They're gone, at least for the moment. But they wrote - the justices wrote - like, this is a big case. What made it feel like a big case?

WILSON: Well, I think it made it feel like a big case because it seems like the government went nuclear on churches and churches alone. That's the claim that runs across these pages. You know, so there's a lot of discussion about acupuncture and campgrounds and microelectronic plant chip-makers, and they're allowed to basically stay open, either because they're essential, which had no cap, unlike churches, and red zones, as you said, were capped at 10 people, or even when they were nonessential, so these orange zones where churches were limited to 25 and only 25 in some instances. And nonessential and essential businesses both had no cap whatsoever.

INSKEEP: Well, this is an interesting part of the argument, though, isn't it? It's like, where do you put religious institutions? What do you compare them to? I believe it was Justice Gorsuch seemed particularly offended that secular institutions like liquor stores didn't seem to have a limit, and yet churches had a limit. Of course, the way the state of New York saw this was that there were certain essential businesses where customers might come and go. Any number of customers might come and go, but they were banning gatherings. You couldn't have a concert anymore, but you could have a religious service with a small number of people.

WILSON: Well, fair point. I mean, I think there's a big question of the comparator, but, you know, you can shop in Nordstroms for hours bumping into people here and there. So you know, I think there is a question of the comparator. There's also a procedural question here, the fact that there was a request for an emergency restraining order. And one of the things that seems very motivating, especially for Gorsuch but also for the majority in the unsigned opinion, is what happens if the court can't act fast enough, if it waits and can't act fast enough?

INSKEEP: Oh. Because the question was should the court rule now, even though the rule has been taken away, and tell the governor that he can't put it back in the future? What do you make of the conflict between Justice Gorsuch and John Roberts, the chief justice of the court, who was on the losing end here, who said, essentially, this is the wrong time to wade into this, or some of the other more liberal justices who said, why are we, as justices, overruling the best public health judgments of public health officials?

WILSON: Well, you have actually a lot of heat shimmering off of these pages. It seems to have gotten very personal between Gorsuch and the chief justice. The chief justice says that Gorsuch's concurrence takes direct aim at him, so you have this piece of it. Some of it is simply an academic argument about how to go through the test for an injunction, which is partly resting on is there irreparable injury to people? And Gorsuch says, you know, we don't cut the Constitution loose in a crisis. We shouldn't be sheltering in place when the Constitution's under attack.

And the chief justice says we're not doing that. We're just looking at this, looking at two threads of constitutional law - one, Jacobson, which is the case about vaccination and is rested very heavily on by the chief justice to say that we have to support governors as they're working this through. You know, the dissents say that New York had a clear, workable rule. But again, everyone agrees that these were extreme, the most extreme provisions in front of the court to date. What they're really fighting about between them in these pages is do we wait and hope for the best and hope the court can jump if it comes back to us, like, if we get moved back to the red zone?

INSKEEP: You know, there's a phrase in one of the opinions about the Constitution should not take a sabbatical in a crisis. It's interesting that that's raised because if you look at American history, sometimes the Constitution has. The Constitution has been violated in other crises, the Civil War, World War II, and people regretted that later. Is that the central question now, how far should we allow authorities to go in a pandemic to protect public health when there's still personal freedom?

WILSON: Well, I think they're resting on the fact that they have a lot more experience than they had in May when they decided the California case against Newsom and more experience than they had in July when they decided the Nevada case. So I think they're saying that we can't afford people to have to lose these rights as we've had more information about how to maintain safety during the pandemic.

INSKEEP: Robin Fretwell Wilson of the University of Illinois, thanks so much.

WILSON: Thank you. Transcript provided by NPR, Copyright NPR.