Page:Roman Catholic Dioceses of Brooklyn v. Cuomo.pdf/32

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ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO

SOTOMAYOR, J., dissenting

stitutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them. Surely the Diocese cannot demand laxer restrictions by pointing out that it is already being treated better than comparable secular institutions.^[1]

Finally, the Diocese points to certain statements by Governor Cuomo as evidence that New York’s regulation is impermissibly targeted at religious activity—specifically, at combatting heightened rates of positive COVID–19 cases among New York’s Orthodox Jewish community. Application 24. The Diocese suggests that these comments supply “an independent basis for the application of strict scrutiny.” Reply Brief in No. 20A87, p. 9. I do not see how. The Governor’s comments simply do not warrant an application of strict scrutiny under this Court’s precedents. Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,” originally conceived of as a “ ‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’ ” Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 27). If the

↑ JUSTICE KAVANAUGH cites Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 537–538 (1993), and Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 884 (1990), for the proposition that states must justify treating even noncomparable secular institutions more favorably than houses of worship. Ante, at 2 (concurring opinion). But those cases created no such rule. Lukumi struck down a law that allowed animals to be killed for almost any purpose other than animal sacrifice, on the ground that the law was a “ ‘religious gerrymander’ ” targeted at the Santeria faith. 508 U. S., at 535. Smith is even farther afield, standing for the entirely inapposite proposition that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” 494 U. S., at 879 (internal quotation marks omitted).

[1] JUSTICE KAVANAUGH cites Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 537–538 (1993), and Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 884 (1990), for the proposition that states must justify treating even noncomparable secular institutions more favorably than houses of worship. Ante, at 2 (concurring opinion). But those cases created no such rule. Lukumi struck down a law that allowed animals to be killed for almost any purpose other than animal sacrifice, on the ground that the law was a “ ‘religious gerrymander’ ” targeted at the Santeria faith. 508 U. S., at 535. Smith is even farther afield, standing for the entirely inapposite proposition that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” 494 U. S., at 879 (internal quotation marks omitted).

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