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Subject:  USSC vs. Cuomo Date:  11/27/2020  6:31 PM
Author:  ptheland Number:  2338353 of 2381061

Since our resident legal professionals haven't commented yet, I'll take an amateur stab at figuring out what is going on with the Court's recent decision regarding Cuomo's covid orders restricting the number of people who can gather in houses of worship. Here's the decision. I highly recommend reading it if you have an interest in this case.

The first thing to understand is the nature of this case. So let's start there. This decision deals with two different cases, one brought by a group of Catholic churches, and another by a group of Jewish synagogues. The two cases deal with the same issue, Governor Cuomo's executive order restricting religious organizations to no more than 10 people when the place of worship is in a "red" zone, and no more than 25 when in an "orange" zone. These organizations feel that this is a violation of First Amendment right to free exercise of religion.

Those two cases are actually in the early stages of the legal process. The organizations asked the lower court for a preliminary injunction to block the order and allow their worship services to proceed without this particular restriction on numbers. The lower court judge did not grant a preliminary injunction. The organizations appealed that decision, and the appellate court also refused to grant the injunction. So they appealed to the USSC. The high court's decision grants the injunction.

So what we have here is not a decision on the merits of the cases. We do not know if the Governor or the organizations will ultimately prevail. However, one requirement for a preliminary injunction is the court's belief that, based on preliminary facts and arguments, the party seeking the injunction is likely to prevail. So it is clear that the high court disagrees with the lower courts on this issue.

This is also a per curium decision, which mainly means it is unsigned. Such a decision is that of the court as a whole rather than the individual justices. However, any concurring or dissenting decisions ARE signed, so we can figure things out pretty easily. Gorsuch and Kavanaugh each wrote a concurring decision. Bryer, Sotomayor, and Kagan joined together in a single dissent, while Roberts wrote his own dissent. By process of elimination, that means the per curium decision is that of Thomas, Alito, and Barrett.

One of the more interesting things to note is that the whole issue is, for the moment, moot. The governor has changed the status of the areas including the plaintiffs to a "yellow" status. In that status, houses of worship may operate at 50% of capacity. So the injunction has no immediate impact. Nothing changes for these organizations as a result of the injunction. The only way the injunction will have any impact is if the governor again changes the status of the areas in which these organizations reside to "red" or "orange".

I found it interesting that none of the decisions in favor of the injunction mentioned this issue - at least I didn't see it on a very quick reading of the decision. But both of the dissenting opinions did.

In my opinion, this feels like judicial activism. The court made a decision that has no immediate impact. And it might never have an impact. Why did they make a decision at all? I can see that there is the possibility for a future impact should the pandemic get worse in the areas in question, causing the governor to change the status of those areas. But unless that happens, there is no practical impact to the injunction. And should that happen, the parties could again appeal to the court on an emergency basis, where they could get a quick decision based on the arguments already made. In the mean time, the lower courts could be deciding the case on it's merits - something that will proceed regardless of this USSC decision.

Again, this is all some amateur ramblings on the issues. And I'm likely to have missed something important. So I'll defer to the professionals should they care to comment.

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