By Daniela Ellerbeck, FOR SA Legal Advisor

In a break with its previous COVID-19 judgments, the Supreme Court of the United States (SCOTUS) has granted an order prohibiting New York Governor, Andrew Cuomo, from enforcing his new COVID regulations on religious services.  This is significant because previous judgments in cases such as Calvary Chapel Dayton Valley found America’s apex court unwilling to second-guess the executive’s exercise of power during the pandemic.

The facts:

Two religious bodies, the Roman Catholic Diocese of Brooklyn and the Agudath Israel of America (an organisation representing Orthodox Jews), asked the Court for an injunction (in South African law known as an interdict) against NY Governor Cuomo’s Executive Order.

This Executive Order imposed severe restrictions on attendance at religious services in areas of New York classified as “red” or “orange” zones.  In an area classified as a “red zone”, a maximum of 10 people were allowed to attend a religious service, and in an “orange zone”, the maximum attendance was capped at 25.

Double-standards are problematic:

The problem was that Governor Cuomo’s restrictions had double standards.  While imposing the above restrictions on religious communities, no similar restrictions were placed on businesses. For example:

In a “red zone”, while religious services were capped at 10 people, there were no limits on the number of people who were allowed to be admitted into essential businesses – who decided for themselves how many people to allow in.   Such “essential business” included “hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents”.  This clear ‘double standard’ led to Supreme Court Justice Gorsuch saying: “So, at least according to the Governor, it 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?

Again, in an “orange zone”, while religious services were capped at 25 people, even non-essential businesses could decide for themselves how many people to admit.  Notably, a health department official testified that a “large store in Brooklyn …could ‘literally have hundreds of people shopping there on any given day’.”

In a similar vein, although the Governor had said that schools and factories had contributed to the spread of COVID-19, his Executive Order imposed less harsh restriction on both schools and factories than on the religious community. In fact, the Court pointed out that both the Diocese and Agudath had admirable safety records, going to extra lengths and without a single COVID outbreak in either of their communities.

As such, the Court said that Governor Cuomo’s regulations singled out houses of worship for “especially harsh treatment”.

No reasonable justification for different treatment:

SCOTUS pointed out that although those who cannot attend a service in person due to the Governor’s cap on people, could watch the services on television, such remote viewing was “not the same as personal attendance. In the context of both applicants (Roman Catholic and Orthodox Jewish), both faiths have important religious traditions that require one’s personal attendance.  Thus, those who could not attend had their right to religious freedom impacted.

The Court noted that “even 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 … guarantee of religious liberty.”

Unfair discrimination:

The restrictions on religious freedom brought about by the Governor’s Executive Order were not based upon a claim that the applicants’ religious services had resulted in the spread of the disease. Indeed, not a single outbreak had occurred in either of their communities. Neither could the State show that the general public’s health would be endangered if less onerous restrictions were imposed on the religious community than on other sectors of society.  In other words, the State could not show that its unequal treatment of the religious community in comparison with other sectors of society, was necessary and that there was a good reason for it.

In this regard, Justice Gorsuch aptly pointed out that “while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”  This unfair discrimination by the State of New York against the religious community is what led to SCOTUS granting the injunction.

South African reality:

As previously written in our article on the Calvary Chapel decision, SCOTUS’ decision does not have any binding effect on South Africa’s courts or our Government.  However, what happens across the Atlantic frequently spills over to us in South Africa. For that reason, it is good to see the top judges in the USA denying the “judicial impulse to stay out of the way in times of crisis” and coming to the Constitution’s defence when its “under attack”.  Indeed, this is the most sacred function of the judiciary.

Note: FOR SA has been representing the interests of 18,5 million people from across the religious community of South Africa, in our engagements with Government to ensure that the Regulations and Directions issued under the state of national disaster are equitable, reasonable and fair.

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.



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