Empathy List Archives

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Amanda Karras

Wed, Dec 16, 2020 6:35 PM

The Supreme Court has granted cert. and remanded a couple of new cases involving restrictions on religious gatherings based on the New York case described in the email below. As Amy Howe points out in her post on SCOTUSBLog: "Tuesday's orders are further evidencehttps://www.scotusblog.com/2020/12/justices-tell-lower-court-to-take-another-look-at-california-covid-19-restrictions-on-indoor-worship/ of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic." This article provides some helpful analysis and can be accessed here: https://www.scotusblog.com/2020/12/justices-revive-religious-groups-attempts-to-block-covid-related-restrictions-in-colorado-new-jersey/#more-298221.

Here's a link to the order in the New Jersey case: https://www.supremecourt.gov/orders/courtorders/121520zr_j4el.pdf

Here is a link to the short order in the Colorado case: https://www.supremecourt.gov/opinions/20pdf/20a105_p860.pdf

Amanda Kellar Karras
Deputy General Counsel /
Director of Legal Advocacy
P: (202) 466-5424 x7116
Email: akarras@imla.org
[facebook icon]https://www.facebook.com/InternationalMunicipalLawyersAssociation/[twitter icon]https://twitter.com/imlalegal[linkedin icon]https://www.linkedin.com/company/international-municipal-lawyers-association-inc./

[logo]https://imla.org/
51 Monroe St. Suite 404
Rockville, MD, 20850
www.imla.org http://www.imla.org/
Plan Ahead!
IMLA's 2021 Mid-Year Seminarhttps://imla.org/seminars/, April 23-26, 2021 in Washington, DC!
IMLA's 86th Annual Conferencehttps://imla.org/annual-conference/, Sept. 29-Oct. 3, 2021 in Minneapolis, MN!

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Amanda Karras
Sent: Tuesday, December 1, 2020 1:01 PM
To: Disasterrelief@lists.imla.org
Subject: [Disasterrelief] SCOTUS COVID Decision Regarding NY Restrictions for Religious Entities

The day before Thanksgiving, the Supreme Court issued a per curiam (unsigned) 5-4 opinion enjoining New York from imposing its 10 and 25-person occupancy limits on religious institutions. Specifically, New York imposed restrictions on attendance at religious services in areas classified as "red" or "orange" zones in the State. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. Religious entities in the state challenged the order claiming it violated their First Amendment Free Exercise rights because it treated in person gatherings at religious services less favorably than comparable secular activities. For example, acupuncture facilities, camp grounds, garages, plants manufacturing chemicals and microelectronics and all transportation facilities are all exempt from the 10 and 25 person caps even if they are in a red or orange zone.

The Supreme Court agreed with the challengers and issued a preliminary injunction in the case, pending appeal. The majority opinion explained that while "[s]temming the spread of COVID-19 is unquestionably a compelling governmental interest", New York's restrictions were too restrictive and not narrowly tailored. The majority noted:

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment's guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a examination of the need for such a drastic measure.

The majority rejected the dissenting opinions' arguments that the case was moot. At the time the Court issued its opinion, the 10 and 25-person caps no longer applied and instead the churches and synagogues challenging the order could hold services at 50% occupancy. The majority explained that the case was not moot because the Governor regularly changes classifications and so the religious institutions could once again be subject to the 10 and 25 person caps.

Justice Gorsuch, in his concurrence, wrote critically of Jacobson v. Massachusetts, noting the case "hardly supports cutting the Constitution loose during a pandemic" particularly with regard to Free Exercise challenges which were not at play in Jacobson. He also sends critical barbs at his colleagues for wanting to "stay out of the way in times of crisis", explaining the Court cannot "shelter in place when the Constitution is under attack."

Justice Kavanaugh wrote a concurrence taking a more measured tone, explaining the New York case was distinguishable from the Court's earlier decisions in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) because New York's restrictions were much more severe. Justice Kavanaugh also explains in his view

the COVID-19 pandemic remains extraordinarily serious and deadly. And at least until vaccines are readily available, the situation may get worse in many parts of the United States. The Constitution "principally entrusts the safety and the health of the people to the politically accountable officials of the States." South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring in denial of application for injunctive relief ) (slip op., at 2) (internal quotation marks and alteration omitted). Federal courts therefore must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic. See ibid. But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.

Chief Justice Roberts dissented and would not have granted the injunction, viewing the case as moot, though he did note that he viewed the restrictions as distinguishable (and more severe) than those in which the Court had previously denied injunctions in the South Bay and Cavalry Chapel Dayton Valley cases. Justice Breyer also dissented and was joined by Justices Sotomayor and Kagan and Justice Sotomayor penned a separate dissent, which Justice Kagan joined.

To review all the decisions involved in the case, click here: https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf

Amanda Kellar Karras
Deputy General Counsel /
Director of Legal Advocacy
P: (202) 466-5424 x7116
M: (857) 753-3311
[facebook icon]https://www.facebook.com/InternationalMunicipalLawyersAssociation/[twitter icon]https://twitter.com/imlalegal[linkedin icon]https://www.linkedin.com/company/international-municipal-lawyers-association-inc./

[logo]https://imla.org/
51 Monroe St. Suite 404
Rockville, MD, 20850
www.imla.org http://www.imla.org/
Plan Ahead!
IMLA's 2021 Mid-Year Seminarhttps://imla.org/seminars/, April 23-26, 2021 in Washington, DC!
IMLA's 86th Annual Conferencehttps://imla.org/annual-conference/, Sept. 29-Oct. 3, 2021 in Minneapolis, MN!

The Supreme Court has granted cert. and remanded a couple of new cases involving restrictions on religious gatherings based on the New York case described in the email below. As Amy Howe points out in her post on SCOTUSBLog: "Tuesday's orders are further evidence<https://www.scotusblog.com/2020/12/justices-tell-lower-court-to-take-another-look-at-california-covid-19-restrictions-on-indoor-worship/> of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic." This article provides some helpful analysis and can be accessed here: https://www.scotusblog.com/2020/12/justices-revive-religious-groups-attempts-to-block-covid-related-restrictions-in-colorado-new-jersey/#more-298221. Here's a link to the order in the New Jersey case: https://www.supremecourt.gov/orders/courtorders/121520zr_j4el.pdf Here is a link to the short order in the Colorado case: https://www.supremecourt.gov/opinions/20pdf/20a105_p860.pdf Amanda Kellar Karras Deputy General Counsel / Director of Legal Advocacy P: (202) 466-5424 x7116 Email: akarras@imla.org [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's 2021 Mid-Year Seminar<https://imla.org/seminars/>, April 23-26, 2021 in Washington, DC! IMLA's 86th Annual Conference<https://imla.org/annual-conference/>, Sept. 29-Oct. 3, 2021 in Minneapolis, MN! From: Disasterrelief <disasterrelief-bounces@lists.imla.org> On Behalf Of Amanda Karras Sent: Tuesday, December 1, 2020 1:01 PM To: Disasterrelief@lists.imla.org Subject: [Disasterrelief] SCOTUS COVID Decision Regarding NY Restrictions for Religious Entities The day before Thanksgiving, the Supreme Court issued a per curiam (unsigned) 5-4 opinion enjoining New York from imposing its 10 and 25-person occupancy limits on religious institutions. Specifically, New York imposed restrictions on attendance at religious services in areas classified as "red" or "orange" zones in the State. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. Religious entities in the state challenged the order claiming it violated their First Amendment Free Exercise rights because it treated in person gatherings at religious services less favorably than comparable secular activities. For example, acupuncture facilities, camp grounds, garages, plants manufacturing chemicals and microelectronics and all transportation facilities are all exempt from the 10 and 25 person caps even if they are in a red or orange zone. The Supreme Court agreed with the challengers and issued a preliminary injunction in the case, pending appeal. The majority opinion explained that while "[s]temming the spread of COVID-19 is unquestionably a compelling governmental interest", New York's restrictions were too restrictive and not narrowly tailored. The majority noted: Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment's guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a examination of the need for such a drastic measure. The majority rejected the dissenting opinions' arguments that the case was moot. At the time the Court issued its opinion, the 10 and 25-person caps no longer applied and instead the churches and synagogues challenging the order could hold services at 50% occupancy. The majority explained that the case was not moot because the Governor regularly changes classifications and so the religious institutions could once again be subject to the 10 and 25 person caps. Justice Gorsuch, in his concurrence, wrote critically of Jacobson v. Massachusetts, noting the case "hardly supports cutting the Constitution loose during a pandemic" particularly with regard to Free Exercise challenges which were not at play in Jacobson. He also sends critical barbs at his colleagues for wanting to "stay out of the way in times of crisis", explaining the Court cannot "shelter in place when the Constitution is under attack." Justice Kavanaugh wrote a concurrence taking a more measured tone, explaining the New York case was distinguishable from the Court's earlier decisions in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) because New York's restrictions were much more severe. Justice Kavanaugh also explains in his view the COVID-19 pandemic remains extraordinarily serious and deadly. And at least until vaccines are readily available, the situation may get worse in many parts of the United States. The Constitution "principally entrusts the safety and the health of the people to the politically accountable officials of the States." South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring in denial of application for injunctive relief ) (slip op., at 2) (internal quotation marks and alteration omitted). Federal courts therefore must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic. See ibid. But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised. Chief Justice Roberts dissented and would not have granted the injunction, viewing the case as moot, though he did note that he viewed the restrictions as distinguishable (and more severe) than those in which the Court had previously denied injunctions in the South Bay and Cavalry Chapel Dayton Valley cases. Justice Breyer also dissented and was joined by Justices Sotomayor and Kagan and Justice Sotomayor penned a separate dissent, which Justice Kagan joined. To review all the decisions involved in the case, click here: https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf Amanda Kellar Karras Deputy General Counsel / Director of Legal Advocacy P: (202) 466-5424 x7116 M: (857) 753-3311 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's 2021 Mid-Year Seminar<https://imla.org/seminars/>, April 23-26, 2021 in Washington, DC! IMLA's 86th Annual Conference<https://imla.org/annual-conference/>, Sept. 29-Oct. 3, 2021 in Minneapolis, MN!

JR

Jesse Richardson

Wed, Dec 16, 2020 6:54 PM

In which case is a church seeking to "worship without restrictions"? My understanding of the cases is that the churches seek to be regulated on equal footing with other public gatherings, and that was my read of the SCOTUS opinion in the NY case. I'm not aware of anyone saying that churches should have NO restrictions (unless other similar public gatherings have no restrictions).

Jesse J. Richardson, Jr.
Professor of Law
Lead Land Use Attorney
Land Use and Sustainable
Development Law Clinic
http://landuse.law.wvu.edu/
WVU College of Law
P.O. Box 6130
Morgantown, WV 26506-6130
(304) 293-9460 (telephone)
(304) 293-7465 (fax)
jesse.richardson@mail.wvu.edu mailto:jesse.richardson@mail.wvu.edu

[https://pod51030.outlook.com/owa/service.svc/s/GetFileAttachment?id=AAMkADAwNjllYzM3LTlhNDctNDZhZC1iMWVjLTkzNTUyYTM3OTgwMQBGAAAAAACM0yHUZBsiSYpyxyHxyOt1BwDnUXwooRtESqOKWbZ24Sx0AAAAAAEKAADnUXwooRtESqOKWbZ24Sx0AAAAGgJSAAABEgAQAC8BszcGYlZNk0cFBpGMQdA%3D&X-OWA-CANARY=8JaYkE12wkmpjRoYF9goFR7tcMrubtAIYAJe-kAwny51dZ95IP9mZSulUMfjXlZsQtz7eXljfvg.]

The information contained in this e-mail transmission (including any attachments thereto) may be privileged and/or confidential and is intended solely for the use of the persons or entities named in the “To:” area above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, reproduction, forwarding, printing, uploading, downloading, or action of any kind (other than deletion of the same) based on any of the information contained in this e-mail or fax transmission is strictly prohibited. If you have received this e-mail or fax transmission in error, please notify the Land Use and Sustainable Development Law Clinic at West Virginia University College of Law by telephone at (304) 293-9460 and immediately delete and otherwise destroy any and all originals or copies (in whatever form) of this e-mail transmission. Thank you.

From: Disasterrelief disasterrelief-bounces@lists.imla.org on behalf of Amanda Karras akarras@imla.org
Sent: Wednesday, December 16, 2020 1:35 PM
To: Disasterrelief@lists.imla.org Disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] SCOTUS COVID Decision

The Supreme Court has granted cert. and remanded a couple of new cases involving restrictions on religious gatherings based on the New York case described in the email below. As Amy Howe points out in her post on SCOTUSBLog: “Tuesday’s orders are further evidencehttps://www.scotusblog.com/2020/12/justices-tell-lower-court-to-take-another-look-at-california-covid-19-restrictions-on-indoor-worship/ of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.” This article provides some helpful analysis and can be accessed here: https://www.scotusblog.com/2020/12/justices-revive-religious-groups-attempts-to-block-covid-related-restrictions-in-colorado-new-jersey/#more-298221.

Here's a link to the order in the New Jersey case: https://www.supremecourt.gov/orders/courtorders/121520zr_j4el.pdf

Here is a link to the short order in the Colorado case: https://www.supremecourt.gov/opinions/20pdf/20a105_p860.pdf

Amanda Kellar Karras
Deputy General Counsel /

Director of Legal Advocacy

P: (202) 466-5424 x7116

Email: akarras@imla.org

[facebook icon]https://www.facebook.com/InternationalMunicipalLawyersAssociation/[twitter icon]https://twitter.com/imlalegal[linkedin icon]https://www.linkedin.com/company/international-municipal-lawyers-association-inc./

[logo]https://imla.org/

51 Monroe St. Suite 404
Rockville, MD, 20850

www.imla.org http://www.imla.org/

Plan Ahead!

IMLA’s 2021 Mid-Year Seminarhttps://imla.org/seminars/, April 23-26, 2021 in Washington, DC!

IMLA’s 86th Annual Conferencehttps://imla.org/annual-conference/, Sept. 29-Oct. 3, 2021 in Minneapolis, MN!

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Amanda Karras
Sent: Tuesday, December 1, 2020 1:01 PM
To: Disasterrelief@lists.imla.org
Subject: [Disasterrelief] SCOTUS COVID Decision Regarding NY Restrictions for Religious Entities

The day before Thanksgiving, the Supreme Court issued a per curiam (unsigned) 5-4 opinion enjoining New York from imposing its 10 and 25-person occupancy limits on religious institutions. Specifically, New York imposed restrictions on attendance at religious services in areas classified as “red” or “orange” zones in the State. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. Religious entities in the state challenged the order claiming it violated their First Amendment Free Exercise rights because it treated in person gatherings at religious services less favorably than comparable secular activities. For example, acupuncture facilities, camp grounds, garages, plants manufacturing chemicals and microelectronics and all transportation facilities are all exempt from the 10 and 25 person caps even if they are in a red or orange zone.

The Supreme Court agreed with the challengers and issued a preliminary injunction in the case, pending appeal. The majority opinion explained that while “[s]temming the spread of COVID-19 is unquestionably a compelling governmental interest”, New York’s restrictions were too restrictive and not narrowly tailored. The majority noted:

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a examination of the need for such a drastic measure.

The majority rejected the dissenting opinions’ arguments that the case was moot. At the time the Court issued its opinion, the 10 and 25-person caps no longer applied and instead the churches and synagogues challenging the order could hold services at 50% occupancy. The majority explained that the case was not moot because the Governor regularly changes classifications and so the religious institutions could once again be subject to the 10 and 25 person caps.

Justice Gorsuch, in his concurrence, wrote critically of Jacobson v. Massachusetts, noting the case “hardly supports cutting the Constitution loose during a pandemic” particularly with regard to Free Exercise challenges which were not at play in Jacobson. He also sends critical barbs at his colleagues for wanting to “stay out of the way in times of crisis”, explaining the Court cannot “shelter in place when the Constitution is under attack.”

Justice Kavanaugh wrote a concurrence taking a more measured tone, explaining the New York case was distinguishable from the Court’s earlier decisions in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) because New York’s restrictions were much more severe. Justice Kavanaugh also explains in his view

the COVID–19 pandemic remains extraordinarily serious and deadly. And at least until vaccines are readily available, the situation may get worse in many parts of the United States. The Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States.” South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring in denial of application for injunctive relief ) (slip op., at 2) (internal quotation marks and alteration omitted). Federal courts therefore must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic. See ibid. But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.

Chief Justice Roberts dissented and would not have granted the injunction, viewing the case as moot, though he did note that he viewed the restrictions as distinguishable (and more severe) than those in which the Court had previously denied injunctions in the South Bay and Cavalry Chapel Dayton Valley cases. Justice Breyer also dissented and was joined by Justices Sotomayor and Kagan and Justice Sotomayor penned a separate dissent, which Justice Kagan joined.

To review all the decisions involved in the case, click here: https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf

Amanda Kellar Karras
Deputy General Counsel /

Director of Legal Advocacy

P: (202) 466-5424 x7116

M: (857) 753-3311

[facebook icon]https://www.facebook.com/InternationalMunicipalLawyersAssociation/[twitter icon]https://twitter.com/imlalegal[linkedin icon]https://www.linkedin.com/company/international-municipal-lawyers-association-inc./

[logo]https://imla.org/

51 Monroe St. Suite 404
Rockville, MD, 20850

www.imla.org http://www.imla.org/

Plan Ahead!

IMLA’s 2021 Mid-Year Seminarhttps://imla.org/seminars/, April 23-26, 2021 in Washington, DC!

IMLA’s 86th Annual Conferencehttps://imla.org/annual-conference/, Sept. 29-Oct. 3, 2021 in Minneapolis, MN!

In which case is a church seeking to "worship without restrictions"? My understanding of the cases is that the churches seek to be regulated on equal footing with other public gatherings, and that was my read of the SCOTUS opinion in the NY case. I'm not aware of anyone saying that churches should have NO restrictions (unless other similar public gatherings have no restrictions). Jesse J. Richardson, Jr. Professor of Law Lead Land Use Attorney Land Use and Sustainable Development Law Clinic http://landuse.law.wvu.edu/ WVU College of Law P.O. Box 6130 Morgantown, WV 26506-6130 (304) 293-9460 (telephone) (304) 293-7465 (fax) jesse.richardson@mail.wvu.edu<mailto:jesse.richardson@mail.wvu.edu> [https://pod51030.outlook.com/owa/service.svc/s/GetFileAttachment?id=AAMkADAwNjllYzM3LTlhNDctNDZhZC1iMWVjLTkzNTUyYTM3OTgwMQBGAAAAAACM0yHUZBsiSYpyxyHxyOt1BwDnUXwooRtESqOKWbZ24Sx0AAAAAAEKAADnUXwooRtESqOKWbZ24Sx0AAAAGgJSAAABEgAQAC8BszcGYlZNk0cFBpGMQdA%3D&X-OWA-CANARY=8JaYkE12wkmpjRoYF9goFR7tcMrubtAIYAJe-kAwny51dZ95IP9mZSulUMfjXlZsQtz7eXljfvg.] ******************************* The information contained in this e-mail transmission (including any attachments thereto) may be privileged and/or confidential and is intended solely for the use of the persons or entities named in the “To:” area above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution, reproduction, forwarding, printing, uploading, downloading, or action of any kind (other than deletion of the same) based on any of the information contained in this e-mail or fax transmission is strictly prohibited. If you have received this e-mail or fax transmission in error, please notify the Land Use and Sustainable Development Law Clinic at West Virginia University College of Law by telephone at (304) 293-9460 and immediately delete and otherwise destroy any and all originals or copies (in whatever form) of this e-mail transmission. Thank you. ________________________________ From: Disasterrelief <disasterrelief-bounces@lists.imla.org> on behalf of Amanda Karras <akarras@imla.org> Sent: Wednesday, December 16, 2020 1:35 PM To: Disasterrelief@lists.imla.org <Disasterrelief@lists.imla.org> Subject: Re: [Disasterrelief] SCOTUS COVID Decision The Supreme Court has granted cert. and remanded a couple of new cases involving restrictions on religious gatherings based on the New York case described in the email below. As Amy Howe points out in her post on SCOTUSBLog: “Tuesday’s orders are further evidence<https://www.scotusblog.com/2020/12/justices-tell-lower-court-to-take-another-look-at-california-covid-19-restrictions-on-indoor-worship/> of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic.” This article provides some helpful analysis and can be accessed here: https://www.scotusblog.com/2020/12/justices-revive-religious-groups-attempts-to-block-covid-related-restrictions-in-colorado-new-jersey/#more-298221. Here's a link to the order in the New Jersey case: https://www.supremecourt.gov/orders/courtorders/121520zr_j4el.pdf Here is a link to the short order in the Colorado case: https://www.supremecourt.gov/opinions/20pdf/20a105_p860.pdf Amanda Kellar Karras Deputy General Counsel / Director of Legal Advocacy P: (202) 466-5424 x7116 Email: akarras@imla.org [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA’s 2021 Mid-Year Seminar<https://imla.org/seminars/>, April 23-26, 2021 in Washington, DC! IMLA’s 86th Annual Conference<https://imla.org/annual-conference/>, Sept. 29-Oct. 3, 2021 in Minneapolis, MN! From: Disasterrelief <disasterrelief-bounces@lists.imla.org> On Behalf Of Amanda Karras Sent: Tuesday, December 1, 2020 1:01 PM To: Disasterrelief@lists.imla.org Subject: [Disasterrelief] SCOTUS COVID Decision Regarding NY Restrictions for Religious Entities The day before Thanksgiving, the Supreme Court issued a per curiam (unsigned) 5-4 opinion enjoining New York from imposing its 10 and 25-person occupancy limits on religious institutions. Specifically, New York imposed restrictions on attendance at religious services in areas classified as “red” or “orange” zones in the State. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. Religious entities in the state challenged the order claiming it violated their First Amendment Free Exercise rights because it treated in person gatherings at religious services less favorably than comparable secular activities. For example, acupuncture facilities, camp grounds, garages, plants manufacturing chemicals and microelectronics and all transportation facilities are all exempt from the 10 and 25 person caps even if they are in a red or orange zone. The Supreme Court agreed with the challengers and issued a preliminary injunction in the case, pending appeal. The majority opinion explained that while “[s]temming the spread of COVID-19 is unquestionably a compelling governmental interest”, New York’s restrictions were too restrictive and not narrowly tailored. The majority noted: Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a examination of the need for such a drastic measure. The majority rejected the dissenting opinions’ arguments that the case was moot. At the time the Court issued its opinion, the 10 and 25-person caps no longer applied and instead the churches and synagogues challenging the order could hold services at 50% occupancy. The majority explained that the case was not moot because the Governor regularly changes classifications and so the religious institutions could once again be subject to the 10 and 25 person caps. Justice Gorsuch, in his concurrence, wrote critically of Jacobson v. Massachusetts, noting the case “hardly supports cutting the Constitution loose during a pandemic” particularly with regard to Free Exercise challenges which were not at play in Jacobson. He also sends critical barbs at his colleagues for wanting to “stay out of the way in times of crisis”, explaining the Court cannot “shelter in place when the Constitution is under attack.” Justice Kavanaugh wrote a concurrence taking a more measured tone, explaining the New York case was distinguishable from the Court’s earlier decisions in South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020), and Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) because New York’s restrictions were much more severe. Justice Kavanaugh also explains in his view the COVID–19 pandemic remains extraordinarily serious and deadly. And at least until vaccines are readily available, the situation may get worse in many parts of the United States. The Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States.” South Bay, 590 U. S., at ___ (ROBERTS, C. J., concurring in denial of application for injunctive relief ) (slip op., at 2) (internal quotation marks and alteration omitted). Federal courts therefore must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic. See ibid. But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised. Chief Justice Roberts dissented and would not have granted the injunction, viewing the case as moot, though he did note that he viewed the restrictions as distinguishable (and more severe) than those in which the Court had previously denied injunctions in the South Bay and Cavalry Chapel Dayton Valley cases. Justice Breyer also dissented and was joined by Justices Sotomayor and Kagan and Justice Sotomayor penned a separate dissent, which Justice Kagan joined. To review all the decisions involved in the case, click here: https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf Amanda Kellar Karras Deputy General Counsel / Director of Legal Advocacy P: (202) 466-5424 x7116 M: (857) 753-3311 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA’s 2021 Mid-Year Seminar<https://imla.org/seminars/>, April 23-26, 2021 in Washington, DC! IMLA’s 86th Annual Conference<https://imla.org/annual-conference/>, Sept. 29-Oct. 3, 2021 in Minneapolis, MN!

CT

Chuck Thompson

Wed, Dec 16, 2020 7:01 PM

Jesse, The statement "seeking to worship without restrictions" is from Amy Howe's post on Scotusblog. I think it may have been an overstatement on her part, but if not I think it fair to say that the Supreme Court has not concluded that religious organizations can conduct worship services without restrictions, only that the restrictions imposed must be consistent with restrictions imposed on others or at least scientifically based. Chuck

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From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Jesse Richardson
Sent: Wednesday, December 16, 2020 1:55 PM
To: Amanda Karras akarras@imla.org; Disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] SCOTUS COVID Decision

In which case is a church seeking to "worship without restrictions"? My understanding of the cases is that the churches seek to be regulated on equal footing with other public gatherings, and that was my read of the SCOTUS opinion in the NY case. I'm not aware of anyone saying that churches should have NO restrictions (unless other similar public gatherings have no restrictions).

Jesse J. Richardson, Jr.
Professor of Law
Lead Land Use Attorney
Land Use and Sustainable
Development Law Clinic
http://landuse.law.wvu.edu/
WVU College of Law
P.O. Box 6130
Morgantown, WV 26506-6130
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(304) 293-7465 (fax)
jesse.richardson@mail.wvu.edu mailto:jesse.richardson@mail.wvu.edu

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From: Disasterrelief <disasterrelief-bounces@lists.imla.org mailto:disasterrelief-bounces@lists.imla.org> on behalf of Amanda Karras <akarras@imla.org mailto:akarras@imla.org>
Sent: Wednesday, December 16, 2020 1:35 PM
To: Disasterrelief@lists.imla.org mailto:Disasterrelief@lists.imla.org <Disasterrelief@lists.imla.org mailto:Disasterrelief@lists.imla.org>
Subject: Re: [Disasterrelief] SCOTUS COVID Decision

The Supreme Court has granted cert. and remanded a couple of new cases involving restrictions on religious gatherings based on the New York case described in the email below. As Amy Howe points out in her post on SCOTUSBLog: "Tuesday's orders are further evidencehttps://www.scotusblog.com/2020/12/justices-tell-lower-court-to-take-another-look-at-california-covid-19-restrictions-on-indoor-worship/ of the broader impact of the New York ruling, which the justices have now invoked three times in three weeks to tell lower courts around the country that they should be more solicitous of religious groups seeking to worship without restrictions during the pandemic." This article provides some helpful analysis and can be accessed here: https://www.scotusblog.com/2020/12/justices-revive-religious-groups-attempts-to-block-covid-related-restrictions-in-colorado-new-jersey/#more-298221.

Here's a link to the order in the New Jersey case: https://www.supremecourt.gov/orders/courtorders/121520zr_j4el.pdf

Here is a link to the short order in the Colorado case: https://www.supremecourt.gov/opinions/20pdf/20a105_p860.pdf

Amanda Kellar Karras
Deputy General Counsel /

Director of Legal Advocacy

P: (202) 466-5424 x7116

Email: akarras@imla.org mailto:akarras@imla.org

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Plan Ahead!

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From: Disasterrelief <disasterrelief-bounces@lists.imla.org mailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Amanda Karras
Sent: Tuesday, December 1, 2020 1:01 PM
To: Disasterrelief@lists.imla.org mailto:Disasterrelief@lists.imla.org
Subject: [Disasterrelief] SCOTUS COVID Decision Regarding NY Restrictions for Religious Entities