On December 15, 2020, the United States Supreme Court handed down what attorneys from the Thomas More Society are calling “a huge victory for religious freedom.” The case pits a New Jersey Catholic priest and Orthodox Jewish rabbi against Governor Philip Murphy’s COVID-19-related executive orders restricting houses of worship to 25% of capacity while secular businesses and schools are at 100% capacity.

The high court granted the writ of certiorari before judgment on appeal in the Third Circuit and vacated the original judgment of the United States District Court for the District of New Jersey, denying an injunction against the restrictions to Reverend Kevin Robinson and Rabbi Yisrael Knopfler who preside over small houses of worship in the state.

The case will now be sent back to the District Court where it will be reconsidered in light of the Supreme Court’s recent (November 30, 2020) decision in Roman Catholic Diocese of Brooklyn v. Cuomo, which held that houses of worship cannot be treated more harshly than functionally comparable secular entities such as schools, warehouses, factories, and large stores.

Thomas More Society Special Counsel Christopher Ferrara addressed the core of the case.

“This is one of dozens of lawsuits across the country pitting houses of worship, their leaders, and congregants against gubernatorial abuse of power,” said Ferrara. “This order shows that the Supreme Court is truly interested in ensuring churches get equal treatment with secular activities, even if Governor Murphy’s edicts are not nearly as ‘severe’ as New York's 10- and 25-person limits on houses of worship in Governor Cuomo’s ‘Red Zone’ or California’s total ban on indoor worship in Governor Newsom’s ‘Purple Tier’.”

“Under Murphy’s executive orders in New Jersey, houses of worship are limited to 25% capacity, while Costco, Walmart, factories, schools, and other venues all get better treatment. What is particularly significant in this case is that the high court is not only recognizing the error of outright bans or virtual bans on houses of worship which were at issue in Roman Catholic Diocese of Brooklyn v. Cuomo in New York and Harvest Rock v. Newsom in California, but also acknowledges that the disparately applied capacity percentage limits also violate the Free Exercise clause,” Ferrara explained.

Ferrara added, “We are getting a very clear message from the United States Supreme Court that government cannot set up any rules that apply to places of worship, or worship activities, but not to other, comparable secular activities. This is the very crux of religious discrimination and a blatant abuse of the United States Constitution and its Amendments.”

Also significant is that the Court granted certiorari and vacated the District Court’s refusal to grant an injunction from New Jersey’s “mask mandate.” As the petition to the Supreme Court argued: “[U]nder New Jersey’s mask mandate, parties of eight (or family parties of unlimited size) can eat, drink and be merry sans masks while facing each other across narrow or round tables, without social distancing, all the while expelling particles of virus at each other—for hours on end, if the owner permits. Yet worshippers cannot sit in pews—facing in the same direction and separated by six feet from each other—for even one hour, once a week, without the mandated face covering. They [are allowed to] partake of Holy Communion or ‘the Kiddush cup’ only ‘momentarily’ without the state-imposed mask, but diners can tuck into multicourse dinners and imbibe wine for as long as they please while maskless. In what world is this disparate treatment of religion versus dining constitutionally permissible?”

On December 15, 2020, the United States Supreme Court Order granted the writ of certiorari before judgement, vacated the October 2 order of the United States District Court for the District of New Jersey, and remanded it to the United States Court of Appeals for the Third Circuit.

Read the Thomas More Society’s Emergency Application to Justice Alito for an Injunction Pending Appellate Review, filed with the United States Supreme Court in Rev. Kevin Robinson and Rabbi Yisrael A. Knopfler v. Philip D. Murphy, Governor of the State of New Jersey, et. al, on November 19, 2020, here.