By Chris Villani

Law360 (December 1, 2020, 7:06 PM EST ) A group challenging COVID-19 rules in Massachusetts told the state's top court that the U.S. Supreme Court's recent decision striking down restrictions on New York church gatherings overrides legal precedent relied on by Gov. Charlie Baker.

In a supplemental brief on Saturday, the New Civil Liberties Alliance argued to the Massachusetts Supreme Judicial Court that the view from the nation's highest panel is that courts should apply a more skeptical eye and a higher bar for governors who wish to shut down businesses during the pandemic.

During oral arguments before the SJC in September, Baker's administration defended his ability to use the state's Civil Defense Act to close businesses deemed "non-essential" and impose other sweeping measures to combat the spread of the virus.

The defense was predicated, in part, on Chief Justice John Roberts' concurrence in South Bay United Pentecostal Church v. Newsome, a May opinion that called for deference to be afforded to governors as they battled the spreading disease.

But the NCLA argued in its recent brief that the Thanksgiving Eve majority ruling in Roman Catholic Diocese of Brooklyn v. Cuomo supersedes the chief justice's earlier opinion.

"Justice [Neil] Gorsuch was particularly skeptical of 'essential' and 'non-essential' executive designations that allowed for some assemblages but not for others, where there was no appreciable distinction in the risk either assemblage posed to public health," the NCLA wrote.

The group told the SJC that Justice Gorsuch wrote that the earlier opinion gave deference to executive orders on a limited basis when the orders were issued "in the pandemic's early stages based on the newness of the emergency and how little was then known about the disease."

"Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical," Justice Gorsuch wrote in the 5-4 ruling blocking New York's virus-imposed restrictions on religious services. Chief Justice Roberts joined the court's liberal wing in dissent.

"As we near the tenth month of Governor Baker's Civil Defense State of Emergency, more and more state and federal courts are declaring gubernatorial decrees unconstitutional," the NCLA's Michael DeGrandis said in a statement Tuesday. "The United States Supreme Court is a welcome addition to that growing list. The Massachusetts Supreme Judicial Court should also recognize that free people don't socially distance themselves from their civil liberties in times of crisis."

In October, the NCLA argued that rulings in Michigan and Pennsylvania that limited those governors' executive orders could also influence the SJC's decision.

The NCLA argues that Baker has overstepped his authority by using the wide-ranging Civil Defense Act as the basis for his COVID-19 orders. The Cold War-era law is misplaced in being applied to a pandemic, the group argues on behalf of several Bay State businesses, because it was designed for foreign invaders or natural disasters, not pandemics.

Instead, the Public Health Act, which puts power in the hands of the Legislature, is the proper statute, the NCLA claims. The argument met a skeptical SJC at oral arguments, with one justice extolling Baker for doing a "darn good job" in combating the virus and another noting that the Civil Defense Act lists as one of its purposes "protecting the public health."

Legal observers say Baker is on safe ground with his pandemic orders and the SJC and other courts will likely defer to him unless there is no rational basis for a particular order. The NCLA argues that a higher standard, strict scrutiny, is required in the wake of the Supreme Court ruling in the Brooklyn diocese case.

Baker has recently reimposed a stay-at-home advisory that was also in place in the spring, along with ordering restaurants and other entertainment venues to close by 9:30 p.m.

During a press conference Tuesday, he said there are no additional closures or restrictions currently being planned. The administration said recently  Massachusetts' capacity restrictions on churches are consistent with the Supreme Court ruling.

Experts note that Baker has appeared sensitive to concerns about limiting the free exercise of religion during the pandemic. Still, the Republican governor pointed to religious gatherings Tuesday as a source of COVID-19 spread on Tuesday, urging worshippers to be cautious.

"Our data has still found that there were too many clusters of cases that stemmed from houses of worship," Baker said. "And these cases spread out into the community at large."

An administration representative declined to comment on the NCLA's filing Tuesday, noting that the administration does not comment on pending litigation.

The businesses are represented by Michael P. DeGrandis of New Civil Liberties Alliance and Danielle Huntley Webb of Huntley PC.

Baker is represented by Amy Spector, Douglas S. Martland and Julia E. Kobick of the Massachusetts attorney general's office.

The case is Dawn Desrosiers et al. v. Charles D. Baker Jr., case number SJC-12983, in the Supreme Judicial Court for the Commonwealth of Massachusetts.

--Editing by Janice Carter Brown.

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