Churchgoers pray keeping social distancing at the St. Stanislaus Kostka Catholic Church in Brooklyn, New York, on June 11, 2020.
CNN  — 

While incidences of Covid spike across the country, the Supreme Court is once again considering arguments from houses of worship that say pandemic-related restrictions are violating their religious freedom rights.

The two latest cases arise out of New York as a Roman Catholic Diocese in Brooklyn and a group of Orthodox synagogues are challenging Democratic Gov. Andrew Cuomo’s executive order limiting in-person attendance at houses of worship to 10 or 25 people in geographic “red” and “orange” zones.

The disputes tee up another test for a court that has already closely divided 5-4 on the issue, and highlights not only the role of Chief Justice John Roberts, who sided against churches in related cases from California and Nevada, but also Justice Amy Coney Barrett, whose vote could represent a solid indication of the court’s rightward turn since the death of Justice Ruth Bader Ginsburg.

It comes as the US has recorded more than 100,000 daily infections for two weeks straight, and Justice Samuel Alito has lashed out at his colleagues, accusing them of failing to properly consider the First Amendment rights of houses of worship.

Alito did not mince words during a speech last week about his feelings of attendance limits.

“We have never before seen restrictions as severe, extensive and prolonged,” Alito told a Federalist Society audience, adding that the pandemic has resulted in “previously unimaginable restrictions on individual liberty.”

The Covid crisis, Alito said, has served as a “sort of constitutional stress test.”

Lawyers for the Brooklyn diocese, which is composed of 186 parishes and 210 total churches, say that the New York order “effectively closes” churches and other houses of worship but allows businesses deemed essential by the governor – including supermarkets, pet stores and hardware stores – to remain open.

“In short, the pandemic alone cannot justify overbroad, untailored closure orders of indefinite duration directed at all houses of worship that in another time would plainly be found to violate the Constitution,” the lawyers say in court papers. The so-called “Cluster Initiative” – aimed at neighborhoods – went into effect on October 6.

On Wednesday New York state Attorney General Letitia James, representing Cuomo, responded to the Supreme Court, calling the restrictions an effort to balance the need to protect residents and “help them return, as much as possible, to their normal lives.”

James argued that in some instances houses of worship are treated “more favorably than comparable gatherings” such as concerts and other large indoor gatherings.

She said the state Department of Health had identified ZIP codes with the highest Covid-19 rates to identify problematic clusters and then had initiated restriction zones. She highlighted a “documented history of religious gatherings serving as Covid-19 super-spreader events.”

James added that businesses that have been allowed to remain open do not share religious services’ specific risk factors, which include large numbers of people from different households arriving simultaneously, congregating for an extended period to speak, sing or chant and then leaving simultaneously.