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In a Supreme Court ruling just before midnight on Thanksgiving eve, Supreme Court Justice Sonia Sotomayor wrote yet another of her fiery dissent – this time warning, in her view, of the dangers of the Court’s majority position on New York State’s Covid-19 restrictions.
The High Court, in a 5-4 vote, blocked restrictions on religious services Gov. Andrew Cuomo introduced to fight the spread of the coronavirus. The majority concluded that Cuomo’s restrictions violated the First Amendment’s protection of the free exercise of religion. These restrictions specified that, depending on infection rates, the number of worshipers at church services could be limited. Judge Neil Gorsuch agreed, writing, in effect, that it was unconstitutional to have laws regulating churches and synagogues while allowing liquor and bicycle shops to reopen.
Sotomayor, the only Latina Supreme Court justice in the country and originally from New York, did not have it.
“The free exercise of religion is one of our most precious and jealously guarded constitutional rights. States cannot discriminate against religious institutions, even when faced with a crisis as deadly as this, ”she wrote. “But these restrictions are not in play today.”
In her dissent, in which she was joined by Justice Elena Kagan, she wrote: “The judges of this Court play a deadly game in questioning the expert judgment of health officials on the environments in which a contagious virus, now infecting one million Americans each week, is most easily spread. “The court dismissed challenges to similar measures in California and Nevada earlier this year, and saw no reason for its apparent change of mind. The court’s ruling, she noted,” will not do that exacerbate the sufferings of the Nation ”.
As the court has turned more and more to the right, Sotomayor has become its strong and progressive voice. She targeted what she viewed as inappropriate actions by the Trump administration, as well as what she viewed as inappropriate behavior on the part of the court itself.
In his dissent in the Covid-19 restrictions case, Roman Catholic Diocese of Brooklyn versus Andrew M. Cuomo, Sotomayor sought to compare Gorsuch’s treatment of religious institutions in New York City to liquor and bicycle shops. In these latter places, she told herself, people don’t gather inside for more than an hour to sing and talk.
Sotomayor has dismissed claims that Governor Cuomo made anti-religious statements, which would mean his coronavirus orders would come under strict court review. Just a few years ago, she pointed out, the court refused to take President Trump’s remarks and comments into account in its assessment of the so-called “Muslim ban,” limiting immigration from predominantly Muslim country. In her view in the DACA case earlier this year, she also noted that the majority also did not give weight to Trump’s comments (on Mexicans) in that decision.
The court’s ruling in the Covid-19 restrictions case is important because it has broad implications for other states and localities that may try to limit attendance at large events, like church services. Sotomayor’s dissent can be seen as a strong response to the conservative majority in the court; in a footnote, she mentioned that “ironically” the complainant diocese is no longer subject to Cuomo’s numerical caps on attendance, “due to the success of New York’s public health measures.
The coronavirus has killed more than 260,000 Americans since the end of February. New York, New Jersey, California, Texas and Florida have seen the most deaths – and these are all states with sizable Latin American populations.
Sotomayor clarified that she considers Cuomo’s Covid-19 actions to be reasonable and legally valid.
“The Constitution does not prohibit states from responding to public health crises with regulations that treat religious institutions equally or more favorably than comparable secular institutions,” Sotomayor wrote, “especially when those regulations save lives. . “
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