Rev. Kevin Robinson, pastor of St. Anthony of Padua R.C. Church in North Caldwell, and Rabbi Knopfler of a small, 30-member Jewish congregation in Lakewood, sought a temporary restraining order or preliminary injunction against Gov. Philip Murphy’s executive orders limiting religious congregations. The governor seeks to stem the spread of the novel coronavirus sweeping the state, country, and world. Rejected at the district court and the Third Circuit the two clergymen petitioned the United States Supreme Court in an “emergency application for an injunction pending appellate review”.
The pastor and the rabbi complain that “[u]nder the New Jersey governor’s web of COVID-19 pandemic regulations, imposed solely by his will, houses of worship are strictly limited to the lesser of 25% of capacity or 150 people, but, strangely enough, never fewer than 10 people even if greater than 25% of capacity.” The minimum allowance of ten is an accommodation to Jewish tradition that requires ten men to form a minyan.
The clergymen complain that the state has imposed “less restrictive limits on secular activities that evidently pose the same or greater risk of viral transmission, [thus] violat[ing their congregants] rights to the Free Exercise of Religion and Free Speech and Assembly.”
The Constitution, they argue “does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities.” The issue closely resembles that in Brooklyn Catholic Diocese v. Andrew Cuomo, Governor of New York. A fractured court, in six opinions voted 6-3 to enjoin Cuomo’s order that in “red zones” no more than 10 may congregate in a church or other indoor place of worship. In a “yellow” zone no more than twenty five may gather in worship.
The Supreme Court in a per curiam opinion in the Brooklyn Catholic Diocese case said the New York measures denied churches and synagogues “the minimum requirement of neutrality”. The opinion disparaged Cuomo’s order because enterprises deemed “essential” include “acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.” Three dissenters on the merits (Justices Breyer, Kagan, and Sotomayor) faulted the five-member majority for interfering with the governor’s informed choices as uninformed intrusions by judges trained as lawyers but unskilled in the arts of epidemiology and public health.
The Supreme Court has vacated the order of the district court denying relief and remanded for reconsideration in light of the Brooklyn Catholic Diocese case. But it appears to us that the New Jersey case can be readily distinguished from the New York order enjoined by the high court. In his brief for Gov. Murphy, Attorney General Gurbir Grewal reports that the New Jersey orders do not single out religious gatherings but rather “prevent crowding at any venue where the public congregates for extended periods”. Grewal goes on to explain that New Jersey “reserves its strictest numerical limits for indoor gatherings, limiting them to just ten people, because they combine the various risk factors that lead to spread of COVID-19—such as group interactions, in indoor spaces, for extended periods of time, and even including loud talking or singing. And the state maintains robust 25% capacity limits for venues where the public remains for extended periods, reasoning that “the more closely [persons] interact with others and the longer that interaction, the higher the risk of COVID-19 spread.”
Courts exercising their equity powers properly tailor their injunctions to the circumstances presented to afford full relief. But there must be a wrong to warrant a remedy. That a general order on congregant activity may impact different groups differently is not tyranny but good government when it is grounded in scientific opinion formed with the degree of rigor typically employed in a field.
Gov. Murphy’s order is informed by the opinions of epidemiologists and public health experts who explain that: the “dose” of COVID-19 to which someone is exposed makes a difference in how likely that individual is to contract the virus, and how severe their illness will be. And the dose to which someone was exposed depends on the closeness and length of their contacts with an infected person. As the CDC puts it, “the more closely you interact with others and the longer that interaction, the higher the risk of COVID-19 spread.”
In the Brooklyn Catholic Diocese case, Associate Justice Brett Kavanaugh explained his vote saying that “New York has not sufficiently justified treating houses of worship more severely than secular businesses.” But in New Jersey the disparity to which Kavanaugh objected is absent. And perhaps more importantly, Murphy’s order is tailored to the viral dose to which certain categories of conduct may subject others, creating heightened risk to the uninfected.
The epidemic is raging and we hope that the newly approved vaccines will bring COVID-19′s spread to a halt. As new infections exceed 200,000 per day nationally and daily deaths exceed 2,000, now is no time for courts to fine tune the scientifically-grounded measures rationally adopted by our state, which is conventionally understood to have the “police power” to protect the public health and welfare.
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