Courthouse Steps Decision Teleforum: Roman Catholic Diocese of Brooklyn v. Cuomo

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On November 25, 2020, the Supreme Court barred New York Governor Andrew Cuomo from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on religious services during the COVID-19 pandemic. Application for injunctive relief was granted in the per curiam opinion. Justices Gorsuch and Kavanaugh filed concurring opinions. Chief Justice Roberts filed a dissenting opinion. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan. Justice Sotomayor filed a dissenting opinion, joined by Justice Kagan. Eric Rassbach joins us to discuss the case and its implications.

Featuring: 

Eric Rassbach, Vice President & Senior Counsel, The Becket Fund for Religious Liberty

 

This event is open to the public and press. Dial 888-752-3232 to access the call.

Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Nick Marr:  Welcome, all, to The Federalist Society's teleforum conference call as this afternoon, December 7, 2020, we're having a special "Courthouse Steps Decision Teleforum on Roman Catholic Diocese of Brooklyn v. Cuomo." This decision, though not a typical kind of decision, was handed down a couple weeks ago, so we're covering it today.

 

      My name is Nick Marr, Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion on our call today are those of our expert.

 

      We're very fortunate to have with us this afternoon Mr. Eric Rassbach. He's Vice President and Senior Counsel at The Becket Fund for Religious Liberty. Mr. Rassbach is going to cover this issue, the general issue of COVID-19 orders and houses of worship, talk about some cases that are in the pipeline, and then, we'll have an audience question period, so be thinking of questions. Maybe you already have some, but be thinking of those. Have them ready for when we get to that portion of the call.

 

      With that, thanks very much for being with us here, Eric. I'll give the floor off to you.

 

Eric Rassbach:  Thanks, Nick. And thank you, everyone, for being on the call. There's a lot going on in this area, so I'm going to try to get through a lot of information prior to the Q&A portion of the event. As Nick said, I'm going to plan to talk about how this area of law has developed over the past almost year now as well as what's coming up.

 

      This is a complicated and fast-developing area of law. Of course, this time last year, no one knew that COVID would come upon us in the year 2020, so all of the cases in this area have come up since March, essentially. They've played out across the entire country. They've played out in state courts, in federal courts, in administrative proceedings, and they've gone to all levels of those courts, including the Supreme Court, which is the main case that we're going to talk about today.

 

      I think the basic conflict across all of these different disputes and the different kinds of houses of worship or religious institutions that are involved comes down to one question, which is how far may the state go, the government go, in restricting religious activity in an effort to prevent the spread of coronavirus? That is the fundamental conflict that's at issue in all of these cases.

 

      The reason I say it that way is that, in normal times, without the emergency of the pandemic, most of the restrictions that we're talking about would be completely unheard of. They would never be undertaken. So this is really a question about what happens in the pandemic, and also in other kinds of emergency situations.

 

      I'm going to give you just a little bit of history. At the outset of the pandemic, a lot of the rules shutting down or causing shelter-in-place orders really started around mid-March. The San Francisco Bay Area jurisdictions entered into a shelter-in-place order on March 17 and a lot of the country followed not that long after.

 

      At the depth of those kinds of orders, most, but not all, states had restricted worship. They'd restricted religious worship, restricted people from going to church or synagogue or mosque. That has varied quite a lot over time.

 

In most states, the governor is the one that calls the shots on these issues. The governor has the ability to issue an order, whether it be shelter-in-place or some other sort of restriction, but there's also a number of orders that happen at the municipal level. For example, in New York City or even places like Madison, Wisconsin.

 

      All of them followed various different formats of kind of restrictions on worship. Some of them would have an absolute ban over time. As things started reopening, they would issue rules that said you can have a cap on how many people can be present at a worship service. They also had rules about percentages; that is, you have an occupancy limit and some percentage of that fire marshal capacity would be allowed to be present in the church.

 

Of course, there were also restrictions about how people would be in the house of worship or worship location. For example, needing to wear masks, staying together with the household, leaving over six feet between households; things of those nature.

 

      Over time, those things have developed and most states have reopened. In fact, as of a couple of weeks ago, by our count, 32 states had no restrictions on houses of worship in terms of what they could do.

 

      So, when I'm talking about these various cases that have come up that have gone into mostly the federal courts, some state court, they are really among these remaining states where there have been restrictions that continue. In 32 of the states, there really are no restrictions on houses of worship in terms of being able to meet for worship.

 

There's, of course, lots of discussion about what -- there are restrictions on trying to be masked at any gathering, etc., but the outright bans or even per person caps or capacity caps, all of those are not there in about 32 states. That number may have changed in the last two weeks.

 

      One other thing that really happens in all of this litigation in this area and in the executive orders is that changes are frequently made by the state executive branches.

 

      So, we're really talking about those 18 other states and the District of Columbia where things are more restricted for houses of worship. The first case to reach the United States Supreme Court was a case called South Bay United Pentecostal Church v. Newsom, which came out of California and was decided on May 29. This was really the first significant case to get to the United States Supreme Court on this issue.

 

      In it, a church in San Diego area was challenging some of the rules that were in place for churches in the State of California. The dynamic that I was talking about earlier was present in this case in that the case was litigated in the district court and in the Ninth Circuit regarding rules that had been superseded by the time the case reached the United States Supreme Court. The applicants, the applicant church rather, pressed on nevertheless and was denied their application for an emergency writ of injunction on May 29.

 

      Normally, those kinds of denials -- many applications come in every year, many of them for prisoners or others. They don't really create a lot of notice or comment and certainly not a lot of writing by the justices, particularly the denials. However, in the South Bay case, Justices Thomas, Alito, Gorsuch, and Kavanaugh noted that they would've granted the application. Then, Chief Justice Roberts wrote a few words in concurrence, concurring with the opinion, saying why he believed that the application should get denied.

 

      For him, it really came down to what's open and what's not open under the Free Exercise -- the challenge was under the Free Exercise Clause, and the question was can you leave, say, factories open but close down houses of worship? The Chief Justice said that it was okay, in this instance -- it was not similar enough, in his view, the things that were open, to allow the Church to be treated under a different rule. So, he said it's okay to have different rules.

 

      There's some dissenting justices. Justice Kavanaugh wrote an opinion saying he felt like this was discriminatory against the Church, and he was joined in that dissent by Justices Thomas and Gorsuch. The vote was 5-4.

 

      The Chief Justice's concurring opinion ended up having quite a large effect on the lower courts, so it began to be cited quite frequently. Professor Blackman at the South Texas College of Law has blogged about this issue; that it sort of, he called it, had become a super precedent by accident. The lower courts began relying on this concurring opinion, which, of course, is a one-justice opinion.

 

And they also started citing a case that was cited in that opinion, which is Jacobson v. Massachusetts, which was a case decided in 1905 that involved a mandatory vaccination regime. That regime was upheld up against an objection. It was someone objecting on religious grounds, but it was not a First Amendment case; it was a due process case.

 

They denied that in 1905. The Chief Justice invoked this opinion invoked this opinion in his concurring opinion in the South Bay case, and that was a pretty strong push in the lower courts, or that provided a pretty strong push in the lower courts, to start really relying on that Jacobson case.

 

Up until the South Bay case was decided in the federal courts, there is a fairly mixed record. After the South Bay case was decided and the court indicated that it was not going to be providing emergency relief to houses of worship that wanted to reopen under the Free Exercise Clause, many lower court decisions started following the Chief Justice Roberts' concurrence as well as the Jacobson case. They started relying on those principally.

 

On July 24, a second case reached the Supreme Court named Calvary Chapel of Dayton Valley v. Steve Sisolak, the governor of Nevada. This case involved a very similar kind of situation. Obviously, a different rule, but the question was could the governor of Nevada, consonant with the Free Exercise Clause, have a 50-person cap on worship by this church in Nevada?

 

The Supreme Court denied the application. There were no opinions in favor of it, but it did vote 5-4 to deny the application for an emergency writ of injunction overruling the Ninth Circuit ruling on the issue. There were separate opinions by Justice Alito, by Justice Gorsuch, and Justice Kavanaugh talking about this issue, basically saying they disagreed.

 

There was a lot of evidence in the record that casinos were open at a pretty large level and that there were claims that because the gambling industry is particularly important in Nevada that they were getting better treatment than small churches, like the Calvary Chapel Church.

 

This was another denial of an emergency application. The South Bay concurrence and Jacobson continued to have quite a bit of force in the lower courts, since South Bay was decided at the end of May, up until very recently. There was still quite a bit of action going on in the lower courts, and in some of the cases where, let's say, the issue had been joined but the relevant government official, let's say a governor, felt that they were in a weaker position, they would often do a strategic retreat from the position they had taken.

 

For example, that's sort of what happened in a case that we are litigating involving a Jewish girls' school in Queens that had been subject to the regulation by Governor Cuomo of New York saying that the school had to close because it was in a "red cluster." Our school—this is a case called Liebowitz v. Cuomo—our client's school had been operating for months with very strict rules in place, being very careful about testing, following all of the CDC regulations, etc. and had not had a single case of COVID transmission in the school.

 

Then, they were shut down by the so-called "cluster initiative" from Governor Cuomo. We brought a lawsuit in the Northern District of New York, in Albany, against Governor Cuomo. After the court asked Governor Cuomo to respond to the lawsuit, on a fairly short timeframe, he changed the color of the zone from red to yellow in that part of Queens, and that immediately made it so that the school could reopen, which, of course, is what our clients wanted; to be able to teach their students. We withdrew our application for a temporary restraining order.

 

I'm just spelling that out because that is a kind of dynamic that's happened in a lot of different parts of the country where if the executive branch official, state official, is in a little bit weaker litigation position, they can very quickly change the rules in a way that really helps them in the litigation or avoid a litigation setback.

 

That became important in the other cases that were challenging the cluster initiative from Governor Cuomo. There were about five or six total cases pending at any given time against this cluster initiative after it was issued.

 

If you look at our briefing, you can see some maps that show how the clusters lined up with the Orthodox Jewish community in New York State. The governor was fairly clear that the reason he was putting the cluster initiative in place was because he wanted to really send a message that he was essentially cracking down on Orthodox Jews, and that there was "a lot of fear in the city," as he put it, and so he needed to show that the government was going to be cracking down on people that were perceived as violating the rules regarding preventing COVID transmission.

 

There were a lot of problems with this approach, not least that we don't usually say, "Okay, some people within a particular people group have been violating the rules so I'm going to crack down on all of them." It's also a problem that you would crack down on any group— especially a religious minority with a long history of horrible government activity directed towards them—that you would crack down on them in order to reassure other people who are fearful of them. That's not really a legitimate interest of the government.

 

That cluster initiative also -- one of those other six lawsuits that was going on, in addition to the one that I mentioned earlier, there were two of them that became very relevant. One was brought by the Roman Catholic Diocese of Brooklyn. The second one was brought by Agudath Israel of America and two associated synagogues in Brooklyn.

 

Both of the cases challenged the application of the cluster initiative to Brooklyn and said that, in these zones—the red zones, orange zones, and yellow zones. If you look at a map, it looks like there's a target centered over various Orthodox Jewish neighborhoods in New York. In the red zone, houses of worship were limited to ten people maximum. In the orange zone, they were limited to 25 people maximum, and then, yellow zone there was not as much of a meaningful restriction. It was sort of similar to what the rules had been prior to the Governor's announcement of the cluster initiative in early October.

 

In these cases, both cases ended up in the Eastern District of New York before separate judges. In both cases, the district court judges ruled against the plaintiffs on their TRO motions. Both of them were seeking, among other things, that the Free Exercise Clause would be applied against these caps and that they were not justly applied to them, and they couldn't really be applied.

 

Obviously, ten people at a Catholic mass is not really going to help many parishes. For Orthodox Jewish prayer services, it takes ten Orthodox men to make a minion, so you could make a minion, a quorum, of Orthodox Jewish males, but that would also mean that no Orthodox women in that area could ever attend worship as long as the red zone was in place.

 

Those were significant problems. They brought them to these district courts. Both district courts ruled against the plaintiffs. Judge Komitee, sitting as a motions judge, did write in his opinion that it was remarkable how clear Governor Cuomo had been that he was targeting the Orthodox Jewish community, but he nevertheless ruled that they would not be entitled to a temporary restraining order.

 

Both sets of plaintiffs appealed to the Second Circuit. Second Circuit heard the cases together. It was a panel with Judge Lohier, Judge Park, and District Judge Rakoff. They issued an opinion not too long after; I should say an order. It was a 2-1 decision. Judge Park dissented. The question was just whether the Free Exercise Clause applied. Again, the majority, Judge Lohier and Judge Rakoff, relied on the South Bay precedent as well as the Jacobson precedent.

 

That then resulted in a trip to the Supreme Court by both sets of applicants. The case reached the Supreme Court in November, and it was briefed quickly. We were one of the law firms representing Agudath Israel. In our application, we pointed out that, generally speaking, the Free Exercise Clause rule of Employment Division v. Smith doesn't apply when someone is targeting a particular religious practice or a religious group for disfavor.

 

In this case, the evidence was very clear that Governor Cuomo had been targeting the Orthodox Jewish community. It didn't really matter whether he bore personal ill will or animus towards that community. The fact that he was singling them out was enough.

 

The Diocese of Brooklyn focused less on the issue of the particular targeting on Orthodox Jews and focused more on just the differential treatment of different kinds of activities, pointing out that things like large retail stores, the transit centers like Grand Central, and other places were not subject to the same rules as the houses of worship. That is, they were subjected, generally speaking, to percentage caps as opposed to a numerical cap, like ten people maximum or 25 people maximum.

 

That was put to the Court. The Court thought about it for a few days, and then, a few minutes to midnight on the day before Thanksgiving, they issued a set of opinions. Their main opinion was a per curiam opinion that granted the applications for the writs of injunction. There were also several concurring opinions. There was a solo concurrence by Justice Gorsuch. There is also an opinion by Justice Kavanaugh that was also a solo concurrence.

 

Then, there were some dissents. One dissent was from the Chief Justice, which was largely responding to some of the points that were made in Justice Gorsuch's concurring opinion. Then, there was an opinion from Justice Breyer, joined by Justice Sotomayor and Justice Kagan, and then, there was another dissent by Justice Sotomayor joined by Justice Kagan. So quite a few opinions. Obviously, it went a few different rounds of circulation at the Supreme Court.

 

The per curiam opinion was different. As I mentioned before, often, in these situations, there's relatively brief kinds of orders that are issued by the Court. For example, we had a case involving Little Sisters of the Poor years ago that received this kind of writ of injunction from the Supreme Court, and the order itself was pretty short.

 

This one was longer, this per curiam opinion. The speculation, of course, is that the Court really wanted to lay out some of the rules in this area and really provide some guidance to the lower courts because, as I mentioned before, they're relying on a 1905 case that didn't even involve the Free Exercise Clause as well as a solo concurring opinion on the side of a denial of an application from May.

 

So those were really the two main sources that the lower courts are relying on. This opinion provides them with much more to work with in terms of guidance in figuring out how to think about the question of how does the Free Exercise Clause and religious worship intersect with the problem presented by the pandemic.

 

The per curiam opinion talked briefly about the issue of the Governor's comments, and said, "The statements made in connection with the challenged rules can be viewed as targeting the ultra-Orthodox Jewish community," but then proceeded to talk about the decisions without regard to the comments. So, it noted that issue, but then said that the real reason it was deciding the case the way it did was because the cluster initiative singled out houses of worship for especially harsh treatment.

 

It described some of the problems, the categorizations. It talked about how a large store in Brooklyn could "literally have hundreds of people shopping there on any given day." The Court also was interested in looking at other jurisdictions and the fact that there are so many other jurisdictions that don't have these kinds of restrictions even though they're facing the same sort of problem that the pandemic presents—and often that might even have a higher incidence of COVID—but found other ways to deal with the problem than putting numerical caps on worship.

 

That was also true of jurisdictions that had lower incidences of COVID. The Court said, applying the Employment Division v. Smith and Church of Lukumi Babalu Aye cases from 1990 and 1993, respectively, that there's sort of a structure set up by those opinions talking about whether a rule is neutral or generally applicable.

 

I'll just say one word briefly about that standard. The general rule of the Smith opinion in 1990, as restated by the Church of the Lukumi case in 1993, is that the Court will not apply strict scrutiny to a Free Exercise Clause challenge unless the plaintiff can show that the law was either not neutral or not generally applicable. That's subject to some other exceptions, such as the doctrine known as the ministerial exception, and education, which I'll get into in a moment.

 

But that's the basic Smith-Lukumi rule. Here, the Court said, "Look, this is not neutral and generally applicable. There's different rules for different kinds of activities that present the same kind of potential harm to the government's interests in preventing COVID spread, and, therefore, it has to undergo strict scrutiny."

 

The Court then proceeded to apply strict scrutiny and said that, obviously, the compelling interest is there, but the Governor was not using the least restrictive means available, and that's because there are "many other less restrictive rules that could be adopted to minimize the risk to those attending religious services."

 

It went into some of the methods that had been used by different religious groups, including the applicants, to reduce the health risk. The Court did not really challenge the idea that preventing COVID spread is a compelling governmental interest, but it said that the rules adopted in the cluster initiative had not been nearly tailored enough.

 

Then the Court got into the other injunction factors, which, of course, are extraordinarily high in the context of getting an injunction from the Supreme Court when both of the lower courts levels have denied such an injunction. But the Court said that there is irreparable harm because "loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury," quoting a 1976 case known as Elrod v. Burns.

 

Then, talking about the public interests factors, and said that that was really not a tough question. It hasn't been shown that the granting the applications will harm the public. And, in fact, the state has not claimed that attendance at the applicants' services has resulted in the spread of the disease.

 

Then the Court talked about a couple of other issues. The most important of which was, I think, the fact that, while these applications were pending, lo and behold, Governor Cuomo changed the red and orange zones in Brooklyn into a yellow zone thus lifting the ten and 25-person caps.

 

The per curiam opinion says that because of the way these things work, if we don't give them relief, they could need to be back here again very quickly because the zones have been reimposed. The Governor had every right, and certainly did not disclaim the right, to reimpose zones based on the criteria that he had put forward.

 

The Court pointed out the matter is not moot and that, because the applicants remain under constant threat that the area in question will become reclassified as red or orange, the Court could go ahead and move to issue the injunctive relief requested.

 

So that's the per curiam opinion. It's pretty detailed, like I said, for this kind of activity on an application for a writ of injunction.

 

Then you have the concurring opinions. Justice Gorsuch wrote a very, I would say, strong opinion really trying to point out how egregious he felt that the rules that had been put in place had been, and also that he really didn't think that anyone should rely on Jacobson or South Bay at all in the future.

 

He also made comparisons to a number of additional kinds of places that were open, such as bike shops and liquor stores, and said, perhaps with sarcasm, "Who knew public health would so perfectly align with secular convenience," in terms of what was open and what wasn't. That was Justice Gorsuch's concurring opinion.

 

Justice Kavanaugh wrote a separate one saying that he didn't think he disagreed that much with the Chief Justice, but that when you have one set of rules, really religious freedom is important enough that it should get something like the most favored nation status idea that he has talked about in other opinions. That was Justice Kavanaugh's opinion.

 

I'm sorry I'm really being very summary here because I realize people want to do questions.

 

The Chief Justice responded, in large part, to Justice Gorsuch's criticism of his concurring opinion in South Bay. He said that "One solo concurrence today takes aim at my concurring opinion in South Bay." But the Chief Justice says that the concurring opinion from Justice Gorsuch was not correct in the sense that it really overplayed how important both South Bay and Jacobson were, and that he, the Chief, did not say anything along those lines in the South Bay decision back at the end of May.

 

Justice Breyer's dissent talked mostly about the fact that the Governor had changed the rules, and that he felt like the writs of injunction should not issue because of the fact that the original thing complained about had been eliminated by the Governor. So, he wasn't really thinking in terms of mootness or capable of repetition yet evading review. He felt that it should just go by the wayside.

 

Justice Sotomayor was the only of the dissents that really engaged with the merits a little more and talked about the risk factors and whether bike stores, for example, that Justice Gorsuch had invoked, were really comparable to houses of worship in terms of how long people stay there, what kinds of activities occur while they're there, etc.

 

That's this decision. This is a pretty momentous opinion in a lot of ways. It really changes the landscape with respect to the pandemic, but also does get into the law of the Free Exercise Clause quite a bit and sort of spell out what courts need to look at.

 

In particular, things like looking at how other states are dealing with the identical problem means that if 32 states can figure out how to do it without shutting down houses of worship, then that starts to put some constitutional pressure on the states that aren't doing that or aren't allowing that because it shows that states with identical or very similar interests can figure out a way to do it without the infringement on the First Amendment protected right to free exercise of religion.

 

That's up to November 25. We're only 12 days after that. There's going to be other shoes to drop is how I would summarize what's going to happen next. There were the two applications that were granted. For those keeping score at home, 20A87, 2A90 were the Diocese of Brooklyn and Agudath Israel cases.

 

There was another challenge out of Louisiana that was denied by Justice Alito on November 27. It had a little bit odd of a question presented, which was something along the lines of does the church have the sole right to decide when it should assemble or not? That was just denied without referral to the entire Court.

 

By my count, and I might not have gotten all of them, but there's four other applications that were out there that were filed after the New York applications, including the Agudath Israel and the Diocese of Brooklyn cases. One of those was GVR—that's granted, vacated, and remanded—on December 3. That was a challenge to Governor Newsom's rules regarding houses of worship in California; the latest iteration of those, I should say. About three or four hours after that, Governor Newsom changed the rules again. So more to be seen there.

 

There's currently another one challenging restrictions on houses of worship in New Jersey, and both sides, in that case, are suggesting that the petition for certiorari should be granted, vacated, and then the decision below vacated and then remanded to the lower court in light of the Diocese of Brooklyn decision.

 

So that's what happened with the California case. The New Jersey case was briefed after that decision in the California case, and they're asking for the same thing to happen there. When both sides are asking for that, it seems fairly likely that that may be what the Court does.

 

Then, there is another challenge on behalf of houses of worship in Colorado that was filed on December 4, and Justice Gorsuch has requested a response from the State of Colorado to that application on December 9.

 

The other big one that's pending out there, on the applications front, is a challenge by the Kentucky Attorney General to rules and a Christian school, Danville Christian Academy, to the rules imposed by the Kentucky governor. You've got the attorney general on one side as the applicant and the governor of Kentucky on the other side as the respondent.

 

That is a case involving religious schools, which presents a different issue than houses of worship. Obviously, schools are open in much of the country but not everywhere. Sometimes they're hybrid. Overseas, obviously, they're open in many countries where there's more severe lockdown rules in place for adults.

 

The rule that they're challenging there is that the Kentucky governor shutdown all K-12 schools. Preschools are not affected and colleges and universities are not affected, but K-12 schools are challenged. This case has garnered a lot of amicus intention. There's five amicus briefs that were filed in support of the application, including by large law firms like Sidley Austin and Jones Day. We also filed an amicus brief in support of the application, and then, there's one amicus brief in support of the governor's position.

 

The reply, at least as of a little earlier today, had not yet been filed in that application. I imagine it will be rather soon. Then, the Court will decide that. I think that if the Court decides it wants to address any of the other decisions, this is the one that they're most likely to focus on. It deals with a little bit different issues about religious schools.

 

In COVID litigation, the two biggest groups of plaintiffs have been houses of worship, of all faiths, and religious schools. Those are the ones who have been most affected by these kinds of governor orders, and those are the two biggest areas I think the Court may want to provide guidance to lower courts on it.

 

Of course, again, these sorts of applications are always a long shot, so you don't really know. But out of the pending applications, that's the one that you could see resulting in another decision. If it does so, it'll probably be this week or next.

 

There's also two cert petitions pending, one involving an Illinois house of worship and, then, also Calvary Chapel is back, and they are seeking cert before judgement in their appeal.

 

These cases are going to keep coming to the Court until the Court provides a fair bit of guidance to the lower courts. Diocese of Brooklyn did quite a bit of that. I think that if they also address the schools issue in the Kentucky case that may well deal with a lot of these applications.

 

The fact that law is being made with respect to these applications on what is sometimes referred to as the shadow docket disturbs some people. I think, in this case, it's really just the nature of the problem. This is an emergency. It's not surprising that people bring emergency injunctions to figure out where are the constitutional guardrails in this situation. Frankly, that's what's happened in other countries.

 

For example, very recently, the Conseil d'État in France issued a ruling striking down the governance, the national government of France's limit on, a cap, on houses of worship of 30 people on much the same grounds as the Diocese of Brooklyn case. They did it on an emergency application brought by a variety of religious groups.

 

It's not really odd that it's happening in these emergency postures because this is an emergency. But I thought it was very interesting that there's such a parallel with what the Conseil d'État did, which is the highest administrative court in France, and the United States Supreme Court.

 

It looks like I should probably switch over to the question and answer, but I guess I would sum up by saying this is a complicated area. We're going to be sorting out what happens in these cases for years to come. I think that the Court issuing the ruling in Diocese of Brooklyn really said that the Constitution does provide guardrails even in a crisis like a pandemic or a war or riots.

 

Whatever the situation, the Constitution is designed for that. If you think about who wrote the Constitution, they were obviously familiar with emergencies themselves and wouldn't have wanted the Constitution to be ignored during that timeframe. I think, arguably, that that point will apply to other constitutional rights as well. I'm a specialist in religious liberty, but I wouldn't be surprised if it started applying to other certainly Bill of Rights rights that are protected.

 

We'll be working this out over time. I do think there's other shoes to drop even at the Court, but this, to my mind, is an important first step in really making sure that some of our fundamental freedoms are being honored despite the ongoing medical crisis.

 

Nick, I think I can do quick questions now if that would be appropriate.

 

Nick Marr:  Yeah, thanks, Eric. And thanks for that thorough review. We have a very active audience. We already have about four callers lined up.

 

Caller 1:  I wanted to know if any issue has been made of the fact that the governor in New York lied in his meetings with Jewish leaders and he lied about those meetings? I also wanted to ask if there's any reluctance on the part of different religious groups with very different beliefs to work together in these types of cases?

 

Eric Rassbach:  Sure. Those are great questions. Since I'm still actively litigating against Governor Cuomo, I won't opine on whether he was lying in a particular meeting or not. I will say that the private meetings that he had with various Jewish leaders were leaked to the press, and perhaps it was because of some of the kind of remarkable statements he made during those meetings.

 

For example, he sort of fully admitted that he was targeting Orthodox Jews, and he also said that the policy that he had fashioned was being "cut with a hatchet rather than a scalpel." So, essentially, a blunt instrument approach. But, of course, that's the opposite of how constitutional law works.

 

      We, obviously, quoted this comment about the hatchet and said that the Constitution deserves more than a hatchet job in our briefing. I think that's what I'll say about that point.

 

      As to different religious groups working together, I think there has been a willingness to work together. For example, in the litigation in New York, both at the Second Circuit and at the United States Supreme Court, there was a prominent brief written, actually, by the Religious Liberty Initiative at Notre Dame Law School on behalf of various Muslim groups.

 

They filed on behalf of Agudath Israel saying that this is a problem when you're scapegoating a religious minority. We've experienced this in various places around the world and throughout history, and, obviously, the Jewish people have as well. Let's not go down this road. This is not a road we should want to go down as a country.

 

      I thought it was great that they did show up because, obviously, they weren't in the case yet they were showing up for the rights of Jewish people. There's been a fair bit of diversity—Baptists, various kinds of Protestant groups showing up in favor of the Catholic Church and the Jewish groups. So, I think there's been different religious groups working together on it, at least in terms of supporting each other with the amicus briefs.

 

Nick Marr:  Okay. We'll go to our next questioner now.

 

Caller 2:  Yes, hello. Thank you. Good afternoon. Thank you so much for your wonderful work at The Becket Fund. It seems—and I think you basically made this point—that this is as close to a decision on the merits as you're going to get in a request for an injunction.

 

I just wanted to -- I don't believe you quoted this line from Justice Gorsuch's concurrence, but it's worth quoting. "Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical." So that was, I think -- anyone who is concerned about religious rights would be gratified by that particular line and by the per curiam opinion and the concurrences in general.

 

      I also wanted to point out that Justice Kavanaugh actually called the ten-person limit and the 25-person limits unconstitutional. Not presumed unconstitutional. Not possibly unconstitutional. He actually writes at the end of his opinion that "The unconstitutional ten-person and 25-person caps…" He's talking on the merits. He's talking exactly how he would rule on the merits. I just thought that was very interesting.

 

      One question. Do you think this could lead to -- we found other cases in other areas maybe on so-called progressive issues, one case leading to another, Griswold leading to Roe v. Wade and that kind of thing. Do you think this could possibly lead to the overturning of Employment Division v. Smith?

 

Eric Rassbach:  Well, let me just comment first on your observations and then answer that question. I agree that the opinion in Diocese of Brooklyn, both the per curiam but also the accompanying opinions, sent a very clear message from the Court that this is close to the merits. And that's what I was sort of pointing out. Hopefully I was clear enough.

 

Usually, these are like a one paragraph or a couple paragraphs or something like that when it's on an emergency application. We've had five of these over the years and we've won three of them. This is by far the longest one we got back. So, it really does say, "We're trying to provide some guidance here," and, certainly, Justice Gorsuch said, "Look, no one's saying South Bay or Jacobson anymore. Don't use those anymore. Use this." I agree with that point.

 

      I think that the question about Smith I do think is squarely presented, actually, particularly in the Kentucky case. In the Kentucky case, again, it's a question about comparisons. One of the most egregious comparisons that's going on there right now -- well, there's two of them, I think, to my mind, that are the most egregious.

 

One is that kids are allowed to go to the movie theater. You can have movie theaters at a Cineplex and they can have up to 25 people in each little theater. K-12 schools are completely shut down—public, private, religious, whatever. The school in this case has said, "All of our classes have less than 25 people in them, if you count all the students and the teacher. So, essentially, if we had our school in the Cineplex, we could have school." So that's the comparison, and that's sort of the main thrust of the argument by the applicants.

 

      But there's another point that we pointed out in our amicus brief, which is that there's another line of precedent involving religious education that's involved. We say that, under a case called Wisconsin v. Yoder, decided in 1972, that religious education has a special role in free exercise juris prudence and is not subject to the general rule of Employment Division v. Smith.

 

I think it would be really both important and helpful for the court to say, "Yes, Smith said it was not overruling Yoder. Yoder governs religious education cases. That would, then, mean that religious schools are under the rule of Yoder, the rule of strict scrutiny." I think that would be really a big step forward for religious freedom in this country if the Court were to do that.

 

Nick Marr:  All right. We've got a couple more callers on the line here, and we're coming up in a couple minutes.

 

Caller 3:  Yeah. Thanks. There's been discussion about the Court dodging the Smith case in the Fulton decision because it could dodge it if it wanted to. But it seems like, in light of all these COVID cases, the Fulton court is necessarily going to have to deal with Smith and probably deep six it. Is that a fair assessment of the situation now?

 

Eric Rassbach:  Well, since I'm representing the petitioners involved in it, I certainly hope that they will rule in favor of my clients. We said in that briefing that we do think that Employment Division v. Smith should be overruled. It's not proven to be a helpful way to think about the Free Exercise Clause. By its own terms, it's completely divorced from the text, history, and tradition of the First Amendment, and it hasn't proven to be workable in practice.

 

You can even see it in these COVID cases. It's not workable because you're sitting here comparing things. You're looking at things as if this is an equal protection case. But really, I would view the Free Exercise right -- it certainly has an equality component, but it can't be only an equality component. It must also have a liberty component and that liberty component should say that "We really value backing up from causing these kinds of conflicts. We really back up from cutting off religious worship; cutting off religious education."

 

I certainly hope that they -- one thing that the Court might see, and other people might see, from this COVID litigation that's come up unexpectedly is that Smith just isn't a great way to decide these cases. It's not a great framework.

 

Nick Marr:  Okay. We'll go to our last question now.

 

Bob Fitzpatrick:  Hi. Bob Fitzpatrick in D.C. First of all, thanks to The Becket Fund and The Federalist Society for, as always, a fantastic presentation. Two real quick questions.

 

Why does the Court -- I view Arch Diocese, for my practice, a mootness case. Why do they not say and cite capable of repetition yet evading review? It just struck me as odd because that's -- Cuomo is playing whack-a-mole with them.

 

Secondly, I don't know the Louisiana case that Justice Alito did not forward to the full Court for consideration, but from your brief description, I wondered how is it the principle there different than the principle at issue in the Kentucky case where the Kentucky case is that religious schools should be treated under Yoder with special scrutiny—forgive the phrase.

 

Why should not, in the Louisiana cases, churches, synagogues, whatever, also be treated with special scrutiny? And why did Alito just with the back of his hand reject the case? Sorry for the long questions. Thank you again for the presentation which is very helpful.

 

Eric Rassbach:  Sure. Thanks. I'll take your questions in order. The reason that they didn't really talk about it in terms of exceptions to mootness is—obviously, I don't know—but probably because the question was whether we were entitled to a writ of injunction. So, it's not so much that we were asking for something and then circumstances made it so that we couldn't get it or not.

 

The question was when they back up, when they stop doing things -- there was no issue joined. We didn't have a right in play from the lower courts, so to speak. We didn't have a ruling in place already, etc. So I think that it was really more about the specific posture of it coming up on an emergency application under the All Writs Act for a writ of injunction from the Supreme Court, which, again, as I mentioned, is a super rare kind of occurrence.

 

      I don't think it actually says anything on those topics. They do cite some mootness decisions—Wisconsin Right to Life, Friends of the Earth—and then they say, "An injunctive relief is still called for because the applicants remain under a constant threat." They cite the Susan B. Anthony List v. Driehaus case. So, I don't think it's really a mootness ruling so much as when are you entitled to a writ of injunction from the Supreme Court, which is a little bit different issue, though obviously one can see the parallels.

 

      On your second question, I'd have to go back and look at the Louisiana application, but I remember thinking that it was stated in fairly categorical and absolutist terms. It wasn't so much that they wanted to get strict scrutiny so much as they just wanted no balancing at all.

 

I don't think that -- strict scrutiny is a balancing test that the courts apply, but I don't think that they're going to get rid of all balancing. Sometimes you really are going to need to -- sometimes the needs of preventing a pandemic or let's say there's a war or whatever else is going to overbalance religious exercise. That's why we have a balancing test.

 

There are some areas of religious liberty law where there is no balancing test, such as the ministerial exception cases that we've litigated, but I would say that, in general, in this kind of framework, the government really has a legitimate interest. The question is just how do you balance those two things against one another?

 

Nick Marr:  Great. Thanks, Eric. Since we're a few minutes over—we had a great program, though—I think we'll wrap it up. Is there anything you want to offer in closing?

 

Eric Rassbach:  I just wanted to say if you want to see about the latest cases that are coming up, our website is becketlaw.org, and we have case pages about most of these different applications that we've been talking about. We also have a page about COVID cases. That will keep getting updated, and we're tracking everything that's going on. Like I said, stay tuned. There's more to come, I'm sure.

 

Nick Marr:  Well, on behalf of The Federalist Society, Eric, I want to thank you for the benefit of your valuable time and expertise today. And to our audience for calling in and your engaging questions.

 

As always, we welcome your feedback by email at info@fed-soc.org. Also, be checking your emails and our website for announcements about upcoming teleforum calls. We have a busy week ahead, so tune into those.

 

      Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.