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Supreme Court Blocks Attendance Restrictions Due To COVID-19 In New York

DAVID GREENE, HOST:

The U.S. Supreme Court has temporarily barred New York from enforcing strict attendance limits on places of worship in areas designated as coronavirus hotspots. New York Governor Andrew Cuomo had limited attendance to religious services in areas designated as red zones, just 10 people. In a 5-4 decision, the conservative majority found that these rules were, quote, "severe and inflexible." Joining us now, law professor Kim Wehle. And, Kim, thanks for being with us on this Thanksgiving. I didn't expect so much legal news. You're helping us understand a few stories this morning.

KIM WEHLE: Happy to be here.

GREENE: Can you just talk about the legal questions that that were at stake here in this ruling about Governor Cuomo's restrictions?

WEHLE: Yeah, there are three really big issues. One is the First Amendment. So, essentially, the majority held that the restrictions were potentially unconstitutional under the First Amendment to the extent to which they negatively affected houses of worship. The second is the kind of relief that was granted here. This is a preliminary injunction. The court could change its mind when we get later to the full hearing. But it's extraordinary relief. And, essentially, Cuomo has backed off of that order. So there's a strong argument that this was moot. In this moment, it doesn't apply to any houses of worship. So it's pretty extreme for the court to nonetheless grant a preliminary injunction on the possibility that the order will kick back in.

And the third legal issue is really one of federalism. That is, as the lower courts held and the dissent held, this is a state trying really hard to keep the members of the public safe during a pandemic. And you would think conservatives would kind of back off of that and say, listen. This is state sovereignty. We're not as justices going to jump into this fray, even if there is arguably a First Amendment issue. And the dissent also said this wasn't singling out houses of worship. They were affected, but they weren't discriminated against intentionally, at least on this record. And that's the place that the majority disagreed. And having Justice Barrett on the court is what put it over the edge, because over the summer, similar claims by Nevada and California failed. So we're seeing already the effects of her fire-drill appointment to the U.S. Supreme Court prior to the election.

GREENE: In this very case, I mean, John Roberts sided with the liberals here, right? And yet the conservative majority was still able to hang on to to a 5-4 majority, which is extraordinary.

WEHLE: Exactly. And he - you know, he sided with the majority - or the liberals on the point that I mentioned earlier, on this mootness point. He's saying, listen. If this were to come back to life, if Cuomo were to reimpose this, the churches could come back to us. We should just sit tight and not jump in. And that's a conservative approach. But again, as you indicated, Justice Barrett went with the majority. Justices Gorsuch and Kavanaugh weighed in separately in their own concurring opinions. And I think what we're seeing here is we're going to see an elevation of First Amendment rights over other public issues of public concern because this majority - this conservative majority is very, very worried. We saw this with Justice Alito in his Federalist speech this last week.

GREENE: So, I mean, just in the few seconds we have left, if this was a moot question in the state of New York, was this majority basically sending a message that these issues are very important? They want to send a message here?

WEHLE: I do think this is going to potentially chill states, governors in the future when they issue these orders - that they have to kind of handle religious institutions with kid gloves.

GREENE: Kim Wehle, law professor at the University of Baltimore, also author of the book "How To Read the Constitution - And Why." Kim, thank you as always. And have a lovely Thanksgiving.

WEHLE: Thank you, David. Transcript provided by NPR, Copyright NPR.