The Roman Catholic Diocese of Brooklyn, New York has petitioned the Supreme Court of the United States for a writ of injunction precluding enforcement of any in-person limit on houses of worship imposed by New York Democrat Governor Andrew Cuomo.

The Diocese contends in its petition that Governor Cuomo’s order imposes heightened restrictions on houses of worship in areas with significant COVID-19 infection that it does not impose on other kinds of institutions, like supermarkets or pet stores.

“The Governor’s latest restrictions cap church attendance at 10 and 25 people in so-called ‘red’ and ‘orange’ zones, respectively, regardless of the capacity of the ‘house of worship,’ and thereby effectively shutter all of the Diocese’s churches in those zones,” the petition to the Supreme Court notes.

The Diocese argues that Gov. Cuomo “expressly singles out ‘houses of worship’ by that name for adverse treatment relative to secular businesses, and does so in a way that is not narrowly tailored to any compelling government interest, in direct violation of the First Amendment’s Free Exercise Clause.”

The petition adds that Governor Cuomo’s order imposes no capacity limits on businesses that are “essential,” like supermarkets, pet stores, hardware stores and brokers’ offices, “even in the most restrictive ‘red’ zones.” Additionally, in the orange zones, even many nonessential businesses, like department stores, can stay open without in-person limits. Churches on the other hand, cannot.

Initially, the Diocese asked for relief in the United States District Court for the Eastern District of New York. However, that request was denied. Following an appeal to the Second Circuit Court of Appeals, the Diocese’ request for relief was again denied.

Trump-appointed Judge Michael Park dissented from the Second Circuit’s decision and argued that Gov. Cuomo’s order unfairly singles out houses of worship for disfavored treatment compared to other types of settings.

The governor’s restrictions on houses of worship “apply only to religious institutions; in the same zones, pet shops, liquor stores, and other businesses the governor considers ‘essential’ remain open, free from any capacity limits,” Judge Park wrote. “By singling out ‘houses of worship’ for unfavorable treatment, the executive order specifically and intentionally burdens the free exercise of religion in violation of the First Amendment.”

“The governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them ‘essential,’ while imposing greater restrictions on ‘non-essential’ activities and religious worship,” Judge Park added.

The court disputes surrounding the government’s ability to restrict in-person attendance at worship services has been litigated several times up to the Supreme Court. To date, the high court has consistently sided against the churches.

In South Bay United Pentecostal Church v. Gavin Newsom, the Supreme Court decided 5-4 on May 29 to reject a request from the church to overturn California Governor Gavin Newsom’s order limiting places of worship to 25% of building capacity or 100 attendees.

Justices Thomas, Alito, Gorsuch and Kavanaugh would have granted the church’s request, while Chief Justice John Roberts joined the then four liberal justices in siding with the government.

Justice Kavanaugh, joined by Justices Thomas and Gorsuch, wrote, “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.”

In July, the Supreme Court again decided 5-4 against Calvary Chapel Dayton Valley which petitioned the court for relief from Democrat Nevada Governor Steve Sisolak’s directive limiting churches to 50 worshipers regardless of building capacity, while permitting casinos 50% of their building capacity.

At the time, Justice Ginsburg provided the fifth vote against both churches. However, following her death, newly sworn-in Justice Barrett has been confirmed to the high court in her place.

It’s possible that the newly reconstituted 5-4 conservative majority on the Supreme Court may reverse course and begin siding with churches in these kinds of in-person limit disputes. The Daily Citizen will keep you updated on any notable developments.

The case is The Roman Catholic Diocese of Brooklyn, New York v. Cuomo

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