My dear brothers and sisters in the Lord,
On Thanksgiving Eve, the Supreme Court of the United States, in a 5-4 decision, temporarily barred enforcement of one aspect of New York’s COVID-19 restrictions that imposed a 10 and 25-person capacity limit on our churches in the so-called Red and Orange zones. Those unreasonable capacity restrictions were the sole focus of the lawsuit the Diocese of Brooklyn filed last month against Governor Andrew Cuomo.
The High Court has now granted an emergency injunction that will prevent the State from enforcing these severe capacity limitations while our case proceeds in the U.S. Court of Appeals for the Second Circuit. As I write this, Brooklyn and Queens are in the less restrictive Yellow zone, or no zone at all, but the Governor has already indicated publicly that the classification can change again at any point.
It was fitting this Supreme Court decision came down on the eve of Thanksgiving, since our country was founded on the principle of religious freedom. That is why the First Amendment of the United States Constitution makes clear that government may neither establish nor hinder the free exercise of religion. With the 10 or 25-person capacity restriction, the Diocese and the faithful were being unlawfully deprived of our First Amendment free exercise right to practice our religion.
In the majority opinion, five justices agreed: “But 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.”
The Supreme Court correctly noted the fixed capacity restrictions imposed by the State failed to consider the size of our individual churches, many of which hold upwards of 700 to 1000 people. We opposed this broad-brush approach, which essentially closed down our churches in the red and orange zones. The majority opinion concurred, noting that “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 activities that the State allows.”
Importantly, we never challenged the separate percentage-cap restrictions that limit church attendance to 25% capacity in red zones and 33% capacity in orange zones. In fact, our churches have been operating at 25% capacity across the board, even in areas where a larger number is permitted by law. Contrary reporting by some media outlets, suggesting that the Supreme Court’s ruling prohibits all restrictions on church attendance, is simply incorrect.
The severe fixed-capacity restrictions that we challenged also failed to take into account the strict enforcement of a multitude of safety protocols our Diocese in Brooklyn and Queens had already implemented that go above and beyond what is required of us. These safety measures have kept our parishioners safe since we re- opened our churches back in June and have been commended by the judges who have heard our case, and even by the Governor’s own lawyers.
The health and safety of our parishioners remains paramount, as it has been since the beginning of this COVID-19 outbreak. That is why I appointed an expert to help guide the reopening of our churches, which I had closed back in March when the pandemic was engulfing us, before the State required us to do so.
I am grateful to Commissioner Joseph Esposito, the former head of the New York City Office of Emergency Management and former Chief of Department of the New York City Police Department, who headed our Diocesan Reopening Task Force. His expertise was critical to the successful implementation of numerous changes to our Masses and churches that begin most importantly with the principle “No Mask, No Mass.” Among other requirements, churches must:
1. ensure that parishioners wear a mask at all times, except for a brief moment when they receive a socially distanced Holy Communion;
2. block off every other pew so congregants cannot sit immediately in front of or behind one another;
3. mark off seats with tape six feet apart within each open pew to ensure appropriate social distancing;
4. provide hand sanitizer stations throughout the church;
5. open only for abridged hours, both on weekdays and for weekend Masses;
6. comply with the 25% capacity restriction, which the Diocese has voluntarily retained even after the State later increased the cap to 33%;
7. keep multiple doors open for various points of entry and exit, and direct traffic in and out of the church, to ensure that worshipers enter and exit in a socially distant manner;
8. sanitize the church before and after each Mass;
9. require additional ushers and security guards to enforce compliance with all of the required procedures and protocols; and
10. post prominent signage about safety protocols.
Another major concern for the Diocese that was highlighted in the Supreme Court’s ruling is that the fixed-capacity restrictions were premised on the Governor’s subjective assessment that houses of worship are not “essential.” The fact that New York State does not consider church an essential service, but businesses like bike shops, liquor stores or acupuncturists are, was highlighted in the concurring opinion of Justice Neil Gorsuch:
“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?”
An individual’s practice of their faith, which is their relationship with God, without a doubt, is an essential part of their life. And yet churches have been lumped in with theaters, sports, and recreational facilities. New York State’s failure to recognize the importance of attendance at Mass, while simultaneously allowing many secular businesses to operate free from any capacity restrictions at all, is “the kind of discrimination the First Amendment forbids,” as Justice Gorsuch put it.
The Diocese acknowledges the State’s right and duty to protect its citizens. But the State’s interest in that regard does not provide a blank check to infringe on people’s right to practice their religion free from any constitutional safeguards. At this point in this pandemic, in the face of many lives lost, much sickness, stress, and challenge, our church doors should be open now more than ever, albeit subject to robust and rigorously enforced safety measures like the ones we’ve put in place.
People are turning to God to safely pray in church for loved ones, for healthcare and essential workers, for themselves, and for a cure for COVID-19. Many Catholics have returned to Mass, with all the necessary and mandated restrictions, for the sense of hope and spiritual nourishment the Mass provides us.
Despite what we have all endured, the strong faith and commitment of our people is inspiring. We all put out into the deep every time we comply with all the guidelines and regulations so we can safely attend Mass and receive the Holy Eucharist.
The Diocese of Brooklyn will continue to follow all the rules and enforce the stringent safety protocols we have implemented as the Coronavirus pandemic continues to plague us. We will also remain steadfast in our efforts to see that at no time, our right to the freedom of worship is ever taken away from us.