“If the court issues an injunction and the state is correct about the acuteness of the threat currently posed by hot-spot neighborhoods,” the judge wrote, “the result could be avoidable death on a massive scale like New Yorkers experienced in the spring.”
In refusing to block the governor’s order while the two appeals went forward, a divided three-judge panel of the United States Court of Appeals for the Second Circuit drew on Chief Justice Roberts’s concurring opinion in the California case. Since the restrictions on churches were less severe than those on comparable secular gatherings, the majority wrote in an unsigned opinion, they did not run afoul of constitutional protections for religious freedom.
In dissent, Judge Michael H. Park said Mr. Cuomo’s order discriminated against houses of worship because it allowed businesses like liquor stores and pet shops to remain open without capacity restrictions.
Chief Justice Roberts rejected a similar argument in the California case. The order there, he wrote, “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
Judge Park responded that the order in the California case, coming as it did in the context of an emergency application that was decided in summary fashion, had limited force as a precedent. Moreover, he wrote, it had been “decided during the early stages of the pandemic, when local governments were struggling to prevent the health care system from being overwhelmed.”
In asking the Supreme Court to step in, lawyers for the diocese argued that its “spacious churches” were safer than many “secular businesses that can open without restrictions, such as pet stores and broker’s offices and banks and bodegas.” An hourlong Mass, the diocese’s brief said, is “shorter than many trips to a supermarket or big-box store, not to mention a 9-to-5 job.”
Ms. Underwood responded that religious services pose special risks. “There is a documented history of religious gatherings serving as Covid-19 superspreader events,” she wrote.