In this interview with Catholic World Report, attorney Randy Mastro discusses the Supreme Court’s ruling in favor of the right to religious freedom in the case presented by the Diocese of Brooklyn, demonstrating religions were being discriminated against in New York with excessive COVID restrictions.
In this interview, Mastro analyzes the significance of the landmark case, what grounds led to their legal win, and why this is not a Catholic-only issue, but affects all faiths. He also discusses why its Supreme Court ruling could have a significant effect on similar discriminatory practices going forward, and gives advice for religious institutions if they were to find themselves in a similar dilemma.
On October 6th, Governor Andrew Cuomo issued an Executive Order capping attendance at houses of worship. Mastro and his legal team were contacted by Bishop Nicholas Anthony DiMarzio and the Diocese that same day. Each week that followed, Mastro says, “was driven by the same goal: working against the clock in an effort to open church doors for the upcoming weekend’s Mass.”
Mastro’s legal claim is that the 10- and 25-person caps violate the Free Exercise Clause of the First Amendment to the U.S. Constitution, with two principal components to the argument.
Catholic World Report recently spoke with Attorney Mastro.
CWR: Attorney Mastro, how were you approached in this case? Could you describe your initial involvement?
Attorney Randy Mastro: Governor Cuomo issued his Executive Order capping attendance at houses of worship on Tuesday, October 6, and we were contacted by the Diocese that same day. By the following day, we were working on the case and off to the races. That first week was a whirlwind. Our immediate goal was to ensure that the doors to churches throughout the Diocese would be open to parishioners for that weekend’s Mass, so we knew we had to get before a judge by the end of the week.
By Thursday, our team had filed the case and requested a temporary restraining order and preliminary injunction, essentially asking the Court to block the 10- and 25-person caps on church attendance in the affected “zones” on an emergency basis while the rest of the case played out. The next day, Friday, we had an emergency hearing before a district court judge. Although that judge denied the temporary restraining order later that night, he invited us to apply for what’s called a “preliminary injunction.” So, we immediately got back to work, further developing the evidentiary record in hopes of winning the preliminary injunction the following week. Each week that followed was driven by the same goal: working against the clock in an effort to open church doors for the upcoming weekend’s Mass.
CWR: What makes this case so important?
Mastro: Our case speaks to a fundamental constitutional issue of nationwide importance: where to draw the line between core individual liberties enshrined in the Constitution, and a State’s public health powers during a pandemic of unknown duration. Nobody—and certainly not the Diocese—questions that the State has a clear interest in combating the pandemic, and that some degree of restrictions are necessary and appropriate.
Indeed, during the early months of the pandemic, when little was known about the virus’ spread, the Diocese voluntarily shut its doors in the interest of public safety, and it strictly complied with the State-imposed restrictions that followed. And when the Diocese reopened its churches’ doors over the summer, it did so subject to strict COVID-19 protocols that it had developed internally, and to the State’s 25% capacity restriction. It has left that 25% restriction in place to this day, even in areas where the State has loosened the cap.
But the new Executive Order went too far: It imposed discriminatory and draconian 10- and 25-person fixed capacity limitations on all houses of worship, without regard to the size of the churches in question. As the Supreme Court recognized, those restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
CWR: How was the Diocese of Brooklyn proactive in working to demonstrate that such government restrictions were not neutral (in terms of limiting parishioners’ ability to worship and gather in ways that were considered excessive, compared to others, even when they were not doing anything contrary to COVID protocols and recommendations)?
Mastro: To be clear, although our client here happened to be Catholic, this isn’t a Catholics-only issue. Rather, this Executive Order singles out “houses of worship” categorically, targeting them with these fixed-capacity restrictions that do not apply to any secular entities or practices. As we argued in our appeal, the discriminatory nature of the Executive Order was therefore self-evident on its face. The Executive Order expressly singles out “houses of worship” for distinctive, adverse treatment relative to many secular businesses, including any that the State happens to have deemed “essential.” This meant that everything from supermarkets to pet stores to hardware stores to brokers’ offices could remain open in “red” zones, while churches and other houses of worship were effectively shuttered. In “orange” zones, even the vast majority of non-essential businesses, including department stores, could remain open, while churches were again effectively shut down via a 25-person cap.
And, as your question points out, these restrictions applied even to faith communities like the Diocese that were meeting—or even exceeding—all public health requirements. A key component of our case was building a clear, undisputed evidentiary record of the Diocese’s rigorous enforcement of safety protocols that had successfully prevented any COVID-19 outbreak or spread in any of its churches at any time following their reopening over the summer.
CWR: Why is this case so significant in defending the right to religious liberty?
Mastro: Prior to our case, the Supreme Court had denied two earlier emergency applications seeking to enjoin COVID-19 restrictions on religious free exercise grounds. A large number of lower courts took this as a signal that they should be entirely deferential to state and local governments imposing restrictions during the pandemic. Our case is a landmark decision because it signals that such restrictions are still subject to meaningful judicial review. Or, as the Supreme Court put it, “even in a pandemic, the Constitution cannot be put away and forgotten.” The injunction granted by the Supreme Court enables the Diocese’s parishioners to return to Mass in a safe manner and subject to the rigorous safety measures the Diocese has put in place.
CWR: Do you see this episode as representing other similar episodes/challenges for people of faith across the States?
Attorney Mastro: Our case is one of many constitutional free exercise challenges brought against COVID‑19 restrictions around the country, and there is certainly overlap in the legal arguments raised in the various cases.
At the same time, however, the precise nature of the restrictions under review and the claims being asserted do vary from case to case, so I certainly wouldn’t want to suggest that our case as singularly representative of all the rest. But I do think that the Supreme Court’s ruling in our case should prompt state and local governments to meaningfully revisit certain aspects of their pandemic-related regulations. Among other things, they should hopefully give more careful consideration to whether the restrictions they’ve imposed have a basis in science or fact, whether they are restricting religious activities more harshly than comparable secular activities, and whether they are properly striking that balance I alluded to earlier between public health and fundamental constitutional rights.
Mastro: What was the biggest challenge in this legal battle?
Attorney Mastro: The biggest hurdle was that so many courts, including the Supreme Court in the two earlier cases, appeared to be taking such a hands-off approach in light of the pandemic. A lot of lower courts were essentially saying that the normal standards of judicial review don’t apply in a public health emergency, and thus the State is entitled to almost total deference.
We saw this play out in the lower courts that considered our case. Both the district court and the court of appeals recognized that the Diocese was doing everything right in terms of keeping its parishioners safe and that the new fixed-capacity restrictions were causing irreparable harm by depriving the Diocese’s parishioners of their ability to practice their faith, but at the end of the day held that the pandemic overrode those considerations and permitted the Governor to enforce his Executive Order. One of our main jobs was to explain why such an approach is erroneous—that even in a pandemic, the Constitution sets the rules. At the end of the day, the Supreme Court agreed.
CWR: On what grounds did you fight this case? And what led to the court’s ruling?
Mastro: Our legal claim is that the 10- and 25-person caps violate the Free Exercise Clause of the First Amendment to the U.S. Constitution. There are two principal components to the argument. First, we argued that the fixed-capacity restrictions single out religious worship for adverse differential treatment compared to many secular institutions that are not subject to the caps. Under federal constitutional law, a regulation that discriminates against religion in this way is subject to what courts refer to as “strict scrutiny,” which essentially means the government needs to make an especially high showing in order to justify the need for such restrictions. And second, we argued that the government could not meet that heightened scrutiny in this case because there are many less restrictive alternatives available to effectively combat COVID-19, such as enforcing compliance with existing laws rather than imposing new, onerous restrictions exclusively upon houses of worship. The Supreme Court agreed with both points.
Those are the legal bases for the claim. There were also important factual points that allowed us to demonstrate why we were right on the law. For one thing, we were able to develop an unequivocal factual record of all of the steps the Diocese has taken to be “ahead of the curve,” as one of the lower courts put it, when it came to implementing and enforcing COVID-19 safety measures. The Diocese has been exceptionally vigilant, enforcing stricter safety protocols than even the State required at any given moment. As a result, there was no COVID-19 spread or outbreak in any of the Diocese’s churches.
On the flipside, the restrictions the governor imposed were especially severe.
CWR: How so?
Mastro: The Diocese’s churches were limited to 10 or 25 people max, without any consideration of the size of the churches. This meant a 1200-person cathedral would be limited to 10 or 25 people, just the same as a 100-person chapel. It’s hard to conceive of any sort of science-based rationale for that sort of arbitrary restriction, and I think the Supreme Court appreciated that.
I should also point out that, while a lot of the press coverage has tried to boil down our win to the fact that a new Justice recently joined the Supreme Court, the reality is much more complex. For example, although the Chief Justice dissented and would have denied our application, he did so only on procedural grounds but appears to have agreed with our position on the merits of the claim. Only two of the nine Justices signed onto an opinion fully dissenting on the merits. All of the opinions, including the unsigned “per curiam” opinion for the five-Justice majority, reflect thoughtful consideration of the particulars of our case. The case wasn’t decided differently from prior ones because there was a new Justice. The facts and the law at issue were different as well, and compelled the granting of an injunction in this case.
CWR: Do you feel that the court’s ruling will have any impact elsewhere? [Editor’s note: On December 17th, after this interview took place, the District of Columbia eased its restrictions after a lawsuit from the Archdiocese of D.C. The lawsuit cited the Brooklyn Diocese case.]
Mastro: I suspect that the most significant impact will be in how lower courts analyze these sorts of challenges to COVID-19 restrictions. We understand that there are currently dozens of religious institutions challenging COVID-19 restrictions around the country. So, the Supreme Court’s holding will presumably be an important touchstone for those cases, but I should point out that its implications will likely extend outside the religious liberty context as well. As I said, the lower courts were largely deferring to state and local government across the board, upholding all pandemic-related regulations regardless of the type of constitutional right at issue in a given case. I suspect that, going forward, courts will begin applying a more traditional constitutional analysis in those other cases, as well. Indeed, one of the concurring opinions—that of Justice Kavanaugh—expressly broadened the decision’s implications in urging that “judicial deference in an emergency or a crisis does not mean wholesale judicial abdication,” both in the context of “religious discrimination,” and also when “important questions of . . . racial discrimination, free speech, or the like are raised.”
CWR: What advice do you have for others in the country, or even beyond, who could find themselves against similar unjust or discriminatory restrictions? What should they do to counter government actions that go beyond their constitutional rights?
Mastro: At the end of the day, each case will turn on the particular facts and restrictions at issue, but I would say two things from a big-picture perspective.
First, make sure you have your house in order, so to speak. As I said, one of the best things the Diocese had going for it was that it had an indisputable record of exemplary COVID-19 mitigation efforts. It’s going to be a lot harder to get a court to enjoin public health regulations if there is concern that the party challenging them is undermining the State’s efforts to slow the spread of the virus.
Second, have the courage of your convictions. We received three adverse rulings in the lower courts, and our client could have gotten discouraged by that and given up. But the Diocese was steadfast; it knew it was in the right and kept fighting all the way to the Supreme Court, and that perseverance paid off in a big way in the end.
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