`
`Cite as: 592 U. S. ____ (2020)
`
`Per Curiam
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`_________________
`No. 20A87
`_________________
`ROMAN CATHOLIC DIOCESE OF BROOKLYN,
`NEW YORK v. ANDREW M. CUOMO,
`GOVERNOR OF NEW YORK
`ON APPLICATION FOR INJUNCTIVE RELIEF
`[November 25,2020]
`
` PER CURIAM.
` The application for injunctive relief presented to JUSTICE
`BREYER and by him referred to the Court is granted. Re-
`spondent is enjoined from enforcing Executive Order
`202.68’s 10- and 25-person occupancy limits on applicant
`pending disposition of the appeal in the United States
`Court of Appeals for the Second Circuit and disposition of
`the petition for a writ of certiorari, if such writ is timely
`sought. Should the petition for a writ of certiorari be de-
`nied, this order shall terminate automatically. In the event
`the petition for a writ of certiorari is granted, the order shall
`terminate upon the sending down of the judgment of this
`Court.
`
`* * * * * *
` This emergency application and another, Agudath Israel
`of America, et al. v. Cuomo, No. 20A90, present the same
`issue, and this opinion addresses both cases.
` Both applications seek relief from an Executive Order is-
`sued by the Governor of New York that imposes very severe
`restrictions on attendance at religious services in areas
`classified as “red” or “orange” zones. In red zones, no more
`than 10 persons may attend each religious service, and in
`orange zones, attendance is capped at 25. The two applica-
`tions, one filed by the Roman Catholic Diocese of Brooklyn
`and the other by Agudath Israel of America and affiliated
`
`

`

`2
`
`
`
`
`
`
`
`
` ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO
`
`
`Per Curiam
`entities, contend that these restrictions violate the Free Ex-
`ercise Clause of the First Amendment, and they ask us to
`enjoin enforcement of the restrictions while they pursue ap-
`pellate review. Citing a variety of remarks made by the
`Governor, Agudath Israel argues that the Governor specif-
`ically targeted the Orthodox Jewish community and gerry-
`
`mandered the boundaries of red and orange zones to ensure
`that heavily Orthodox areas were included. Both the Dio-
`
`cese and Agudath Israel maintain that the regulations treat
`houses of worship much more harshly than comparable sec-
`ular facilities. And they tell us without contradiction that
`they have complied with all public health guidance, have
`implemented additional precautionary measures, and have
`operated at 25% or 33% capacity for months without a sin-
`gle outbreak.
`
`
`The applicants have clearly established their entitlement
`
`to relief pending appellate review. They have shown that
`
`their First Amendment claims are likely to prevail, that
`denying them relief would lead to irreparable injury, and
`that granting relief would not harm the public interest. See
`
`Winter v. Natural Resources Defense Council, Inc., 555 U. S.
`7, 20 (2008). Because of the need to issue an order
`promptly, we provide only a brief summary of the reasons
`
`why immediate relief is essential.
`Likelihood of success on the merits. The applicants have
`
`made a strong showing that the challenged restrictions vi-
`
`olate “the minimum requirement of neutrality” to religion.
`
`Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.
`
`520, 533 (1993). As noted by the dissent in the court below,
`statements made in connection with the challenged rules
`
`can be viewed as targeting the “ ‘ultra-Orthodox [Jewish]
`community.’ ” ___ F. 3d ___, ___, 2020 WL 6750495, *5
`
`
`(CA2, Nov. 9, 2020) (Park, J., dissenting). But even if we
`put those comments aside, the regulations cannot be viewed
`
`
`
`
`
`
`
`

`

`
`
`3
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
`
`Per Curiam
`as neutral because they single out houses of worship for es-
`
`pecially harsh treatment.1
`
`In a red zone, while a synagogue or church may not admit
`more than 10 persons, businesses categorized as “essential”
`
`may admit as many people as they wish. And the list of
`“essential” businesses includes things such as acupuncture
`facilities, camp grounds, garages, as well as many whose
`services are not limited to those that can be regarded as es-
`sential, such as all plants manufacturing chemicals and mi-
`croelectronics and all transportation facilities. See New
`
`York State, Empire State Development, Guidance for De-
`termining Whether a Business Enterprise is Subject to a
`
`Workforce Reduction Under Recent Executive Orders,
`https://esd.ny.gov/guidance-executive-order-2026. The dis-
`parate treatment is even more striking in an orange zone.
`While attendance at houses of worship is limited to 25 per-
`sons, even non-essential businesses may decide for them-
`selves how many persons to admit.
`
`These categorizations lead to troubling results. At the
`hearing in the District Court, a health department official
`testified about a large store in Brooklyn that could “literally
`have hundreds of people shopping there on any given day.”
`
`App. to Application in No. 20A87, Exh. D, p. 83. Yet a
`nearby church or synagogue would be prohibited from al-
`lowing more than 10 or 25 people inside for a worship ser-
`vice. And the Governor has stated that factories and
`schools have contributed to the spread of COVID–19, id.,
`Exh. H, at 3; App. to Application in No. 20A90, pp. 98, 100,
`
`but they are treated less harshly than the Diocese’s
`churches and Agudath Israel’s synagogues, which have ad-
`
`mirable safety records.
`
`
`Because the challenged restrictions are not “neutral” and
`
`
`
`
`
`——————
`1Compare Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 29)
`(directive “neutral on its face”).
`
`
`
`

`

`4
`
`
`
`ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO
`
`
`Per Curiam
`of “general applicability,” they must satisfy “strict scru-
`tiny,” and this means that they must be “narrowly tailored”
`to serve a “compelling” state interest. Church of Lukumi,
`508 U. S., at 546. Stemming the spread of COVID–19 is
`
`unquestionably a compelling interest, but it is hard to see
`how the challenged regulations can be regarded as “nar-
`rowly tailored.” They are far more restrictive than any
`COVID–related regulations that have previously come be-
`fore the Court,2 much tighter than those adopted by many
`other jurisdictions hard-hit by the pandemic, and far more
`severe than has been shown to be required to prevent the
`spread of the virus at the applicants’ services. The District
`Court noted that “there ha[d] not been any COVID–19 out-
`break in any of the Diocese’s churches since they reopened,”
`
`and it praised the Diocese’s record in combatting the spread
`of the disease. ___ F. Supp. 3d ___, ___, 2020 WL 6120167,
`*2 (EDNY, Oct. 16, 2020). It found that the Diocese had
`
`been constantly “ahead of the curve, enforcing stricter
`safety protocols than the State required.” Ibid. Similarly,
`Agudath Israel notes that “[t]he Governor does not dispute
`
`that [it] ha[s] rigorously implemented and adhered to all
`
`health protocols and that there has been no outbreak of
`COVID–19 in [its] congregations.” Application in No.
`20A90, at 36.
`
`Not only is there no evidence that the applicants have
`contributed to the spread of COVID–19 but there are many
`other less restrictive rules that could be adopted to mini-
`mize the risk to those attending religious services. Among
`other things, the maximum attendance at a religious ser-
`
`vice could be tied to the size of the church or synagogue.
`Almost all of the 26 Diocese churches immediately affected
`——————
` 2See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) (di-
`
`
` rective limiting in-person worship services to 50 people); South Bay
`
`United Pentecostal Church v. Newsom, 590 U. S. ___ (2020) (Executive
`Order limiting in-person worship to 25% capacity or 100 people, which-
`ever was lower).
`
`
`
`
`
`
`

`

`
`
`5
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
`
`Per Curiam
` by the Executive Order can seat at least 500 people, about
`
`
` 14 can accommodate at least 700, and 2 can seat over 1,000.
`Similarly, Agudath Israel of Kew Garden Hills can seat up
`to 400. It is hard to believe that admitting more than 10
`people to a 1,000–seat church or 400–seat synagogue would
`create a more serious health risk than the many other ac-
`tivities that the State allows.
` Irreparable harm. There can be no question that the
`
`
`challenged restrictions, if enforced, will cause irreparable
`
`harm. “The loss of First Amendment freedoms, for even
`minimal periods of time, unquestionably constitutes irrep-
`
`arable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976)
`(plurality opinion). If only 10 people are admitted to each
`
`service, the great majority of those who wish to attend Mass
`
`on Sunday or services in a synagogue on Shabbat will be
`barred. And while those who are shut out may in some in-
`
`stances be able to watch services on television, such remote
`viewing is not the same as personal attendance. Catholics
`who watch a Mass at home cannot receive communion, and
`
`there are important religious traditions in the Orthodox
`Jewish faith that require personal attendance. App. to Ap-
`plication in No. 20A90, at 26–27.
` Public interest. Finally, it has not been shown that grant-
`ing the applications will harm the public. As noted, the
`State has not claimed that attendance at the applicants’
`
`services has resulted in the spread of the disease. And the
`State has not shown that public health would be imperiled
`if less restrictive measures were imposed.
`
`
`Members of this Court are not public health experts, and
`we should respect the judgment of those with special exper-
`tise and responsibility in this area. But even in a pandemic,
`the Constitution cannot be put away and forgotten. The re-
`
`strictions 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 serious
`
`

`

`6
`
`
`
`ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO
`
`
`Per Curiam
`examination of the need for such a drastic measure.
`
`The dissenting opinions argue that we should withhold
`relief because the relevant circumstances have now
`changed. After the applicants asked this Court for relief,
`
`the Governor reclassified the areas in question from orange
`to yellow, and this change means that the applicants may
`hold services at 50% of their maximum occupancy. The dis-
`
`sents would deny relief at this time but allow the Diocese
`
`and Agudath Israel to renew their requests if this recent
`reclassification is reversed.
`
`There is no justification for that proposed course of ac-
`tion. It is clear that this matter is not moot. See Federal
`
`Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S.
`449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Envi-
`ronmental Services (TOC), Inc., 528 U. S. 167, 189 (2000).
`
`And injunctive relief is still called for because the appli-
`cants remain under a constant threat that the area in ques-
`
`tion will be reclassified as red or orange. See, e.g., Susan
`
`
`B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The
`
`Governor regularly changes the classification of particular
`areas without prior notice.3 If that occurs again, the reclas-
`sification will almost certainly bar individuals in the af-
`fected area from attending services before judicial relief can
`
`be obtained. At most Catholic churches, Mass is celebrated
`
`daily, and “Orthodox Jews pray in [Agudath Israel’s] syna-
`gogues every day.” Application in No. 20A90, at 4. Moreo-
`ver, if reclassification occurs late in a week, as has hap-
`pened in the past, there may not be time for applicants to
`seek and obtain relief from this Court before another Sab-
`bath passes. Thirteen days have gone by since the Diocese
`
`filed its application, and Agudath Israel’s application was
`filed over a week ago. While we could presumably act more
`——————
`3Recent changes were made on the following dates: Monday, Novem-
`
`ber 23; Thursday, November 19; Wednesday, November 18; Wednesday,
`
`November 11; Monday, November 9; Friday, November 6; Wednesday,
`October 28; Wednesday, October 21.
`
`
`
`
`
`
`
`

`

`
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
`
`Per Curiam
`swiftly in the future, there is no guarantee that we could
`provide relief before another weekend passes. The appli-
`cants have made the showing needed to obtain relief, and
`there is no reason why they should bear the risk of suffering
`
`further irreparable harm in the event of another reclassifi-
`cation.
`For these reasons, we hold that enforcement of the Gov-
`
`ernor’s severe restrictions on the applicants’ religious ser-
`vices must be enjoined.
`
`7
`
`
`
`It is so ordered.
`
`
`

`

`1
`
`
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
` GORSUCH, J., concurring
`
`
`SUPREME COURT OF THE UNITED STATES
`_________________
`No. 20A87
`
`_________________
`
` ROMAN CATHOLIC DIOCESE OF BROOKLYN,
`
`
` NEW YORK v. ANDREW M. CUOMO,
` GOVERNOR OF NEW YORK
`
`
`ON APPLICATION FOR INJUNCTIVE RELIEF
`[November 25, 2020]
`
` JUSTICE GORSUCH, concurring.
`Government is not free to disregard the First Amend-
`
`ment in times of crisis. At a minimum, that Amendment
`prohibits government officials from treating religious exer-
` cises worse than comparable secular activities, unless they
`
`are pursuing a compelling interest and using the least re-
`strictive means available. See Church of Lukumi Babalu
`
`Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). Yet recently,
`during the COVID pandemic, certain States seem to have
`ignored these long-settled principles.
`
`
`Today’s case supplies just the latest example. New York’s
`
`Governor has asserted the power to assign different color
`codes to different parts of the State and govern each by ex-
`ecutive decree. In “red zones,” houses of worship are all but
`
`closed—limited to a maximum of 10 people. In the Ortho-
`
`dox Jewish community that limit might operate to exclude
`
`
`all women, considering 10 men are necessary to establish a
`minyan, or a quorum. In “orange zones,” it’s not much dif-
`ferent. Churches and synagogues are limited to a maxi-
`mum of 25 people. These restrictions apply even to the larg-
`est cathedrals and synagogues, which ordinarily hold
`hundreds. And the restrictions apply no matter the precau-
`tions taken, including social distancing, wearing masks,
`leaving doors and windows open, forgoing singing, and dis-
`infecting spaces between services.
`
`
`
`
`
`
`
`

`

`
`
` ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO
`
` GORSUCH, J., concurring
`
`
` At the same time, the Governor has chosen to impose no
`
`
`capacity restrictions on certain businesses he considers “es-
`sential.” And it turns out the businesses the Governor con-
`siders essential include hardware stores, acupuncturists,
`
`and liquor stores. Bicycle repair shops, certain signage
`companies, accountants, lawyers, and insurance agents are
`all essential too. So, at least according to the Governor, it
`
`may be unsafe to go to church, but it is always fine to pick
`
`up another bottle of wine, shop for a new bike, or spend the
`afternoon exploring your distal points and meridians. Who
`knew public health would so perfectly align with secular
`convenience?
`As almost everyone on the Court today recognizes, squar-
`
`ing the Governor’s edicts with our traditional First Amend-
`ment rules is no easy task. People may gather inside for
`extended periods in bus stations and airports, in laundro-
`
`mats and banks, in hardware stores and liquor shops. No
`
`
`apparent reason exists why people may not gather, subject
`
`to identical restrictions, in churches or synagogues, espe-
`cially when religious institutions have made plain that they
`stand ready, able, and willing to follow all the safety pre-
`cautions required of “essential” businesses and perhaps
`
`more besides. The only explanation for treating religious
`places differently seems to be a judgment that what hap-
`
`pens there just isn’t as “essential” as what happens in sec-
`ular spaces. Indeed, the Governor is remarkably frank
`about this: In his judgment laundry and liquor, travel and
`tools, are all “essential” while traditional religious exercises
`
`
`are not. That is exactly the kind of discrimination the First
`Amendment forbids.
`
`Nor is the problem an isolated one. In recent months,
`
`certain other Governors have issued similar edicts. At the
`flick of a pen, they have asserted the right to privilege res-
`taurants, marijuana dispensaries, and casinos over
`churches, mosques, and temples. See Calvary Chapel Day-
`ton Valley v. Sisolak, 591 U. S. ___, ___ (2020) (GORSUCH,
`
`
`
`2
`
`
`
`
`

`

`3
`
`
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
` GORSUCH, J., concurring
`
`
`J., dissenting). In far too many places, for far too long, our
`first freedom has fallen on deaf ears.
`*
`
`
`What could justify so radical a departure from the First
`Amendment’s terms and long-settled rules about its appli-
`cation? Our colleagues offer two possible answers. Ini-
`tially, some point to a solo concurrence in South Bay Pente-
`costal Church v. Newsom, 590 U. S. ___ (2020), in which
`THE CHIEF JUSTICE expressed willingness to defer to exec-
`utive orders in the pandemic’s early stages based on the
`
`newness of the emergency and how little was then known
`about the disease. Post, at 5 (opinion of BREYER, J.). At
`
`
`that time, COVID had been with us, in earnest, for just
`three months. Now, as we round out 2020 and face the pro-
`spect of entering a second calendar year living in the pan-
`demic’s shadow, that rationale has expired according to its
`
`own terms. Even if the Constitution has taken a holiday
`during this pandemic, it cannot become a sabbatical. Ra-
`ther than apply a nonbinding and expired concurrence from
`South Bay, courts must resume applying the Free Exercise
`Clause. Today, a majority of the Court makes this plain.
`
`Not only did the South Bay concurrence address different
`circumstances than we now face, that opinion was mistaken
`
`from the start. To justify its result, the concurrence reached
`back 100 years in the U. S. Reports to grab hold of our de-
`cision in Jacobson v. Massachusetts, 197 U. S. 11 (1905).
`
`But Jacobson hardly supports cutting the Constitution
`loose during a pandemic. That decision involved an entirely
`different mode of analysis, an entirely different right, and
`an entirely different kind of restriction.
`
`Start with the mode of analysis. Although Jacobson pre-
`dated the modern tiers of scrutiny, this Court essentially
`applied rational basis review to Henning Jacobson’s chal-
`lenge to a state law that, in light of an ongoing smallpox
`pandemic, required individuals to take a vaccine, pay a $5
`
`
`
`
`
`

`

`
`
`
`
` ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO
`
` GORSUCH, J., concurring
`
`
`fine, or establish that they qualified for an exemption. Id.,
`
`at 25 (asking whether the State’s scheme was “reasonable”);
`
`id., at 27 (same); id., at 28 (same). Rational basis review is
`the test this Court normally applies to Fourteenth Amend-
`ment challenges, so long as they do not involve suspect clas-
`sifications based on race or some other ground, or a claim of
`
`fundamental right. Put differently, Jacobson didn’t seek to
`depart from normal legal rules during a pandemic, and it
`supplies no precedent for doing so. Instead, Jacobson ap-
`plied what would become the traditional legal test associ-
`
`ated with the right at issue—exactly what the Court does
`today. Here, that means strict scrutiny: The First Amend-
`ment traditionally requires a State to treat religious exer-
`cises at least as well as comparable secular activities unless
`
`it can meet the demands of strict scrutiny—showing it has
`employed the most narrowly tailored means available to
`
`satisfy a compelling state interest. Church of Lukumi, 508
`U. S., at 546.
`
`Next, consider the right asserted. Mr. Jacobson claimed
`that he possessed an implied “substantive due process”
`right to “bodily integrity” that emanated from the Four-
`teenth Amendment and allowed him to avoid not only the
`
`vaccine but also the $5 fine (about $140 today) and the need
`
`to show he qualified for an exemption. 197 U. S., at 13–14.
`
`This Court disagreed. But what does that have to do with
`our circumstances? Even if judges may impose emergency
`
`restrictions on rights that some of them have found hiding
`
`in the Constitution’s penumbras, it does not follow that the
`same fate should befall the textually explicit right to reli-
`
`gious exercise.
`
`
`Finally, consider the different nature of the restriction.
`
`In Jacobson, individuals could accept the vaccine, pay the
`fine, or identify a basis for exemption. Id., at 12, 14. The
`imposition on Mr. Jacobson’s claimed right to bodily integ-
`rity, thus, was avoidable and relatively modest. It easily
`
`4
`
`
`
`
`

`

`5
`
`
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
` GORSUCH, J., concurring
`
`
`survived rational basis review, and might even have sur-
`vived strict scrutiny, given the opt-outs available to certain
`
`objectors. Id., at 36, 38–39. Here, by contrast, the State
`has effectively sought to ban all traditional forms of wor-
`ship in affected “zones” whenever the Governor decrees and
`
`for as long as he chooses. Nothing in Jacobson purported
`to address, let alone approve, such serious and long-lasting
`intrusions into settled constitutional rights. In fact, Jacob-
`son explained that the challenged law survived only be-
`
`cause it did not “contravene the Constitution of the United
`States” or “infringe any right granted or secured by that in-
`strument.” Id., at 25.
`
`
`Tellingly no Justice now disputes any of these points.
`Nor does any Justice seek to explain why anything other
`than our usual constitutional standards should apply dur-
`
`ing the current pandemic. In fact, today the author of the
`South Bay concurrence even downplays the relevance of Ja-
`
`cobson for cases like the one before us. Post, at 2 (opinion
`of ROBERTS, C. J.). All this is surely a welcome develop-
`ment. But it would require a serious rewriting of history to
` suggest, as THE CHIEF JUSTICE does, that the South Bay
`
`
` concurrence never really relied in significant measure on
`
`
`
` Jacobson. That was the first case South Bay cited on the
`
`
`substantive legal question before the Court, it was the only
`case cited involving a pandemic, and many lower courts
`
`quite understandably read its invocation as inviting them
`
` to slacken their enforcement of constitutional liberties
`while COVID lingers. See, e.g., Elim Romanian Pentecostal
`
`Church v. Pritzker, 962 F. 3d 341, 347 (CA7 2020); Legacy
`
`Church, Inc. v. Kunkel, ___ F. Supp. 3d ___, ___ (NM 2020).
`
`
`
`Why have some mistaken this Court’s modest decision in
`Jacobson for a towering authority that overshadows the
`Constitution during a pandemic? In the end, I can only sur-
`mise that much of the answer lies in a particular judicial
`
`impulse to stay out of the way in times of crisis. But if that
`impulse may be understandable or even admirable in other
`
`
`
`
`
`

`

`6
`
`
`
`
` ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO
`
` GORSUCH, J., concurring
`
`
`circumstances, we may not shelter in place when the Con-
`stitution is under attack. Things never go well when we do.
`*
`
`That leaves my colleagues to their second line of argu-
`ment. Maybe precedent does not support the Governor’s ac-
`
`tions. Maybe those actions do violate the Constitution.
`
`But, they say, we should stay our hand all the same. Even
`if the churches and synagogues before us have been subject
`to unconstitutional restrictions for months, it is no matter
`because, just the other day, the Governor changed his color
`code for Brooklyn and Queens where the plaintiffs are lo-
`cated. Now those regions are “yellow zones” and the chal-
`
`lenged restrictions on worship associated with “orange” and
`
`“red zones” do not apply. So, the reasoning goes, we should
`
`send the plaintiffs home with an invitation to return later
`
`if need be.
`
`To my mind, this reply only advances the case for inter-
`vention. It has taken weeks for the plaintiffs to work their
`
`way through the judicial system and bring their case to us.
`During all this time, they were subject to unconstitutional
`
`restrictions. Now, just as this Court was preparing to act
`on their applications, the Governor loosened his re-
`
`strictions, all while continuing to assert the power to
`tighten them again anytime as conditions warrant. So if we
`dismissed this case, nothing would prevent the Governor
`
`from reinstating the challenged restrictions tomorrow. And
`
`by the time a new challenge might work its way to us, he
`
`could just change them again. The Governor has fought
`this case at every step of the way. To turn away religious
`leaders bringing meritorious claims just because the Gov-
`
`ernor decided to hit the “off ” switch in the shadow of our
`
`review would be, in my view, just another sacrifice of fun-
`damental rights in the name of judicial modesty.
`
`
`Even our dissenting colleagues do not suggest this case is
`
`
`
`

`

`7
`
`
`
`
`
`
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
` GORSUCH, J., concurring
`
`
`moot or otherwise outside our power to decide. They coun-
`sel delay only because “the disease-related circumstances
`
`[are] rapidly changing.” Post, at 5 (opinion of BREYER, J.).
`
`But look at what those “rapidly changing” circumstances
`suggest. Both Governor Cuomo and Mayor de Blasio have
`“indicated it’s only a matter of time before [all] five bor-
`
`oughs” of New York City are flipped from yellow to orange.
`J. Skolnik, D. Goldiner, & D. Slattery, Staten Island Goes
`‘Orange’ As Cuomo Urges Coronavirus ‘Reality Check’
`Ahead of Thanksgiving, N. Y. Daily News (Nov. 23, 2020),
`https://www.nydailynews.com/coronavirus/ny-coronavirus-
`cuomo-thanksgiving-20201123-yyhxfo3kzbdinbfbsqos3tvrk
`u-story-html. On anyone’s account, then, it seems inevita-
`ble this dispute will require the Court’s attention.
`
`It is easy enough to say it would be a small thing to re-
`quire the parties to “refile their applications” later. Post, at
`3 (opinion of BREYER, J.). But none of us are rabbis won-
`dering whether future services will be disrupted as the
`
`High Holy Days were, or priests preparing for Christmas.
`Nor may we discount the burden on the faithful who have
`lived for months under New York’s unconstitutional regime
`unable to attend religious services. Whether this Court
`could decide a renewed application promptly is beside the
`
`point. The parties before us have already shown their enti-
`tlement to relief. Saying so now will establish clear legal
`
`rules and enable both sides to put their energy to productive
`use, rather than devoting it to endless emergency litigation.
`
`Saying so now will dispel, as well, misconceptions about the
`role of the Constitution in times of crisis, which have al-
`ready been permitted to persist for too long.
`It is time—past time—to make plain that, while the pan-
`
`demic poses many grave challenges, there is no world in
`
`which the Constitution tolerates color-coded executive
`edicts that reopen liquor stores and bike shops but shutter
`churches, synagogues, and mosques.
`
`
`
`
`
`

`

`1
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
` KAVANAUGH, J., concurring
`
`
`SUPREME COURT OF THE UNITED STATES
`_________________
`No. 20A87
`
`_________________
`
` ROMAN CATHOLIC DIOCESE OF BROOKLYN,
`
`
` NEW YORK v. ANDREW M. CUOMO,
` GOVERNOR OF NEW YORK
`
`
`ON APPLICATION FOR INJUNCTIVE RELIEF
`[November 25, 2020]
`
`
` JUSTICE KAVANAUGH, concurring.
`
`I vote to grant the applications of the Roman Catholic Di-
`
`ocese of Brooklyn and Agudath Israel of America for tempo-
`rary injunctions against New York’s 10-person and 25-
`
` person caps on attendance at religious services. On this
`record, temporary injunctions are warranted because New
`York’s severe caps on attendance at religious services likely
`violate the First Amendment. Importantly, the Court’s or-
`ders today are not final decisions on the merits. Instead,
`
`the Court simply grants temporary injunctive relief until
`
`the Court of Appeals in December, and then this Court as
`appropriate, can more fully consider the merits.
`
`
`To begin with, New York’s 10-person and 25-person caps
`on attendance at religious services in red and orange zones
`(which are areas where COVID–19 is more prevalent) are
`much more severe than most other States’ restrictions, in-
`
`cluding the California and Nevada limits at issue in South
`Bay United Pentecostal Church v. Newsom, 590 U. S. ___
`
`(2020), and Calvary Chapel Dayton Valley v. Sisolak, 591
`U. S. ___ (2020). In South Bay, houses of worship were lim-
`ited to 100 people (or, in buildings with capacity of under
`400, to 25% of capacity). And in Calvary, houses of worship
`
`were limited to 50 people.
`
`
`New York has gone much further. In New York’s red
`
`
`zones, most houses of worship are limited to 10 people; in
`
`
`
`
`
`

`

`
`
`
`
` ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO
`
` KAVANAUGH, J., concurring
`
`
`orange zones, most houses of worship are limited to 25 peo-
`
`ple. Those strict and inflexible numerical caps apply even
`
`to large churches and synagogues that ordinarily can hold
`hundreds of people and that, with social distancing and
`mask requirements, could still easily hold far more than 10
`or 25 people.
`
`Moreover, New York’s restrictions on houses of worship
`not only are severe, but also are discriminatory. In red and
`orange zones, houses of worship must adhere to numerical
`caps of 10 and 25 people, respectively, but those caps do not
`apply to some secular buildings in the same neighborhoods.
`In a red zone, for example, a church or synagogue must ad-
`
`here to a 10-person attendance cap, while a grocery store,
`pet store, or big-box store down the street does not face the
`same restriction. In an orange zone, the discrimination
`against religion is even starker: Essential businesses and
`many non-essential businesses are subject to no attendance
`caps at all.
`
`The State’s discrimination against religion raises a seri-
`ous First Amendment issue and triggers heightened scru-
`tiny, requiring the State to provide a sufficient justification
`for the discrimination. See Church of Lukumi Babalu Aye,
`
`Inc. v. Hialeah, 508 U. S. 520, 537–538 (1993); Employment
`
`Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S.
`872, 884 (1990). But New York has not sufficiently justified
`treating houses of worship more severely than secular busi-
`
`nesses.
`
`The State argues that it has not impermissibly discrimi-
`nated against religion because some secular businesses
`such as movie theaters must remain closed and are thus
`treated less favorably than houses of worship. But under
`
`this Court’s precedents, it does not suffice for a State to
`point out that, as compared to houses of worship, some sec-
`
`ular businesses are subject to similarly severe or even more
`
`severe restrictions. See Lukumi, 508 U. S., at 537–538;
`Smith, 494 U. S., at 884; see also Calvary, 591 U. S., at ___
`
`2
`
`
`
`
`

`

`3
`
`
`
` Cite as: 592 U. S. ____ (2020)
`
` KAVANAUGH, J., concurring
`
`
`(KAVANAUGH, J., dissenting from denial of application for
`
`injunctive relief ) (slip op., at 7). Rather, once a State cre-
`
`
`ates a favored class of businesses, as New York has done in
`
`this case, the State must justify why houses of worship are
`
`excluded from that favored class. Here, therefore, the State
`must justify imposing a 10-person or 25-person limit on
`
`houses of worship but not on favored secular businesses.
`See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at
`
`884. The State has not done so.
`
`To be clear, the COVID–19 pandemic remains extraordi-
`narily 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 polit-
`
`ically accountable officials of the States.” South Bay, 590
`U. S., at ___ (ROBERTS, C. J., concurring in denial of appli-
`
`cation for injunctive relief ) (slip op., at 2) (internal quota-
`
`tion marks and alteration omitted). Federal courts there-
`fore must afford substantial deference to state and local
`
`authorities about how best to balance competing policy con-
`siderations during the pandemic. See ibid. But judicial def-
`erence 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.
`In light of the devastating pandemic, I do not doubt the
`
`
`State’s authority to