That leaves my colleagues to their second line of argument. Maybe precedent does not support the Governor’s actions. Maybe those actions do violate the Constitution. But, they say, we should stay our hand all the same. Even if the churches and synagogues before us have been subject to unconstitutional restrictions for months, it is no matter because, just the other day, the Governor changed his color code for Brooklyn and Queens where the plaintiffs are located. Now those regions are “yellow zones” and the challenged restrictions on worship associated with “orange” and “red zones” do not apply. So, the reasoning goes, we should send the plaintiffs home with an invitation to return later if need be.
To my mind, this reply only advances the case for intervention. It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way.
To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.
Even our dissenting colleagues do not suggest this case is moot or otherwise outside our power to decide. They counsel delay only because “the disease-related circumstances [are] rapidly changing.” Post, at 5 (opinion of BREYER, J.). But look at what those “rapidly changing” circumstances suggest. Both Governor Cuomo and Mayor de Blasio have “indicated it’s only a matter of time before [all] five boroughs” of New York City are flipped from yellow to orange. J. Skolnik, D. Goldiner, & D. Slattery, Staten Island Goes ‘Orange’ As Cuomo Urges Coronavirus ‘Reality Check’ Ahead of Thanksgiving, N. Y. Daily News (Nov. 23, 2020),
https://www.nydailynews.com/coronav...anksgiving-20201123-yyhxfo3kzbdinbfbsqos3tvrk u-story-html. On anyone’s account, then, it seems inevitable this dispute will require the Court’s attention.
It is easy enough to say it would be a small thing to require the parties to “refile their applications” later. Post, at 3 (opinion of BREYER, J.). But none of us are rabbis wondering whether future services will be disrupted as the High Holy Days were, or priests preparing for Christmas. Nor may we discount the burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services. Whether this Court could decide a renewed application promptly is beside the point. The parties before us have already shown their entitlement to relief. Saying so now will establish clear legal rules and enable both sides to put their energy to productive use, rather than devoting it to endless emergency litigation. Saying so now will dispel, as well, misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.
It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.
