by Guy Page
After the U.S. Supreme Court ruling in Roman Catholic Diocese v. Cuomo shut down New York Covid restrictions on religious attendance, Vermonters began asking: how does the ruling affect Vermont’s emergency order regulation of church attendance?
At his Nov. 27 press conference, Gov. Phil Scott claimed the SCOTUS decision upholds Vermont Covid regulations allowing religious service attendance of up to 50% of building occupancy. He referenced this passage in the ruling: “there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue.”
However, the Court also was troubled by any restrictions being placed on religious worship when other public gatherings – stores selling essential items, for example – have no attendance restrictions at all:
“While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves 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.”
As goes Brooklyn, so goes Vermont. These stores are deemed essential and critical: Grocery Stores, Specialty Food Stores, and Beer, Wine, and Liquor Stores, Health and Personal Care Stores, and Gas Stations.
And the court urged states to not let pandemic response run roughshod over the Constitution:
“Even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions 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.”
In an opinion written in support of the majority, Associate Justice Neil Gorsuch warned against secular favoritism:
“At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers 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?”