KAVANAUGH, J., concurring
orange zones, most houses of worship are limited to 25 people. Those strict and inflexible numerical caps apply even to large churches and synagogues that ordinarily can hold hundreds of people and that, with social distancing and mask requirements, could still easily hold far more than 10 or 25 people.
Moreover, New York’s restrictions on houses of worship not only are severe, but also are discriminatory. In red and orange zones, houses of worship must adhere to numerical caps of 10 and 25 people, respectively, but those caps do not apply to some secular buildings in the same neighborhoods. In a red zone, for example, a church or synagogue must adhere to a 10-person attendance cap, while a grocery store, pet store, or big-box store down the street does not face the same restriction. In an orange zone, the discrimination against religion is even starker: Essential businesses and many non-essential businesses are subject to no attendance caps at all.
The State’s discrimination against religion raises a serious First Amendment issue and triggers heightened scrutiny, requiring the State to provide a sufficient justification for the discrimination. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 537–538 (1993); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 884 (1990). But New York has not sufficiently justified treating houses of worship more severely than secular businesses.
The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884; see also Calvary, 591 U. S., at ___
