Page:Roman Catholic Dioceses of Brooklyn v. Cuomo.pdf/31

Rh as Amicus Curiae 3–6 (Brief for AMA). Unlike religious services, which “have every one of th[ose] risk factors,” Brief for AMA 6, bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. Id., at 7 (“Epidemiologists and physicians generally agree that religious services are among the riskiest activities”). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.

In truth, this case is easier than South Bay and Calvary Chapel. While the state regulations in those cases generally applied the same rules to houses of worship and secular institutions where people congregate in large groups, New York treats houses of worship far more favorably than their secular comparators. Compare, e.g., Calvary Chapel, 591 U. S., at ___ (KAVANAUGH, J., dissenting) (slip op., at 8) (noting that Nevada subjected movie theaters and houses of worship alike to a 50-person cap) with App. to Brief in Opposition in No. 20A87, p. 53 (requiring movie theaters, concert venues, and sporting arenas subject to New York’s regulation to close entirely, but allowing houses of worship to open subject to capacity restrictions). And whereas the restrictions in South Bay and Calvary Chapel applied statewide, New York’s fixed-capacity restrictions apply only in specially designated areas experiencing a surge in COVID–19 cases.

The Diocese suggests that, because New York’s regulation singles out houses of worship by name, it cannot be neutral with respect to the practice of religion. Application 22. Thus, the argument goes, the regulation must, ipso facto, be subject to strict scrutiny. It is true that New York’s policy refers to religion on its face. But as I have just explained, that is because the policy singles out religious