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Why exactly was New York’s COVID-19 regime not “neutral”?

I have now had some time to digest Roman Catholic Diocese of Brooklyn v. Cuomo. Upon some reflection, the weakest part of the opinion is perhaps the most significant: why was New York’s COVID-19 regime not “neutral”? This analysis very, very thin. And the majority does not really explain what it is doing. Much is left to implication. I am happy to draw these implications. But I suspect lower courts will decline to draw these implications, and stick with South Bay. And all they have to do is cite the critical sentence: “Because of the need to issue an order promptly, we provide only a brief summary of the reasons why immediate relief is essential.”

First, the Court states “the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.” And how do we know that the regulations “single out houses of worship for especially harsh treatment”?

Second, the Court compares Houses of Worship to other so-called “essential” businesses. For example, “acupuncture facilities, camp grounds, garages, as well as many whose services” do not have any occupancy caps. Moreover, the Court states that “factories and schools” are “treated less harshly” than houses of worship.

Third, this method of comparison is different from the comparator method from Chief’s South Bay concurrence. In South Bay, Roberts compared the house of worship to “comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” They key word is “comparable.” The per curiam opinion does not require that the house of worship be “comparable” to other secular businesses. Are houses of worship comparable to “factories and schools”? Not really. If any secular businesses are treated more favorably, the government has the burden to demonstrate why house of worship are treated less favorably.

Fourth, the majority–to be frank–adopted Justice Kavanaugh’s “most favored” right approach. Kavanaugh describes this approach in his concurrence:

The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884; see also Calvary, 591 U. S., at ___ (KAVANAUGH, J., dissenting from denial of application for injunctive relief ) (slip op., at 7). Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884. The State has not done so.

I see very little daylight between actual operation of the per curiam opinion and the Kavanaugh concurrence. At least Kavanaugh had the temerity to say what he was doing. And Justice Sotomayor reamed him or it. She wrote, that Smith and Lukumi do not “justify treating even noncomparable secular institutions more favorably than houses of worship.” Sotomayor was correct. But I don’t think the current interpretation fo Smith will stand for long.

Perhaps the majority was unwilling to adopt this new conception of “neutrality” here. I earlier speculated that this shift may augur the outcome in Fulton. Perhaps that case will formally adopt the Kavanaugh model of neutrality. If so, it would make sense to avoid reaching such a broad conclusion in an unargued shadow docket case.

What will the lower courts do to determine neutrality? Compare house of worship to “comparable secular gatherings”? Or consider all secular gatherings, regardless of whether they were comparable. I think Diocese has rejected the requirement of comparableness. Now, the comparators are any exempted gatherings. Of course, that holding is not clear. And the Supreme Court will have to clean up the mess in a few months.

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Josh Blackman

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