Justices ‘play a deadly game’ in COVID/church ruling


A 5–4 Supreme Court decision enjoining New York state’s pandemic policy that limited some church gatherings is wrong, unnecessary and portends big trouble ahead for our secular laws and policies.

As dissenting Justice Sonia Sotomayor warns: “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.”

Earlier this year, the court had upheld health restrictions on church services in Nevada and California, but the vote in Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, Governor of New York flipped. The opinion was a rebuke for Chief Justice John G. Roberts, who’d voted with the majority in the earlier rulings, but dissented in this case. The addition of archconservative Amy Coney Barrett on the court last month, replacing Ruth Bader Ginsburg, has “dealt the chief justice a body blow,” as the New York Times put it. (Not that we should give Roberts, who indicated in his dissent that he thought the New York rules had gone too far, too much credit.)

The injunction was unnecessary
The Archdiocese of Brooklyn and Agudath Israel of America, an ultra-Orthodox Jewish congregation, were situated within the red and orange zones in Brooklyn and Queens with high COVID infections, and had been restricted to 10- and 25-person capacity limits by Gov. Andrew Cuomo. But in response to a lessening spread, Cuomo had already lifted the restrictions by the time the request to enjoin the governor reached the high court. With the litigants now in a “yellow zone,” they now can hold services at up to 50 percent of capacity. As Roberts pointed out in his dissent, this is more relief than their suits sought. The case is due to be heard by a court of appeals, and hasn’t been fully argued or considered, making the action by the high court especially irregular.

The decision was wrong
The majority of ultraconservatives on the court — Justices Barrett (widely speculated to have written the unsigned decision), Neil Gorsuch, Brett Kavanaugh, Clarence Thomas and Samuel Alito — was clearly eager to act on its newfound power to squelch what it misguidedly saw as a case of “religious discrimination.” But stay-at-home orders treated religious worship more favorably than movie houses, lectures, plays or indoor sporting events, which were entirely banned. The five justices absurdly treated the temporary limitations like a national emergency — dramatically issuing a ruling minutes before midnight on Nov. 25, the eve of Thanksgiving. “Even in a pandemic, the Constitution cannot be put away and forgotten,” the majority chided. President Trump almost immediately tweeted the decision, adding “HAPPY THANKSGIVING.”

The heavy lifting was done by Gorsuch, whose sarcastic concurring opinion lit into the dissenters. He claimed the governor deems that “it may be unsafe to go to church, but it is always fine to pick up another bottle or wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians [acupuncture].” Gorsuch decried the “burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services [emphasis added].”

The majority’s true grievance — umbrage that governments are not labeling church services as “essential” — is revealed in Gorsuch’s concurrence: “The only explanation for treating religious places differently, seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular places.” Church officials and theocratic public officials have deeply resented that church gatherings have not been deemed “essential” by executives trying to stop the spread of the coronavirus. The majority opinion, voted on by a bloc of practicing Catholics with the exception of Gorsuch (who was raised Catholic, but now attends an Episcopalian church), goes so far as to claim that those who can’t attend Mass are at “risk of suffering further irreparable harm in the event of another reclassification.” Most of us would consider, when comparing the harm of missing in-person Mass to risking death from COVID-19, the latter to be the “irreparable harm,” but not the high court’s coterie of true believers.

Dissenters urge caution
In his temperate dissent, Roberts (also a practicing Catholic) responded to the majority and Gorsuch’s charges: “To be clear, I do not regard my dissenting colleagues as ‘cutting the Constitution loose during a pandemic,’ yielding to ‘a particular judicial impulse to stay out of the way in times of crisis,’ or ‘shelter[ing] in place when the Constitution is under attack.’” The chief justice said that no injunctive relief is needed given the changing facts, pointed out the court could act quickly on a renewed application if the shutdowns begin again, and noted that the Constitution entrusts “the safety and health of the people” to politically accountable officials.

In his dissent, Justice Stephen Breyer underlined that New York’s regulations treat church services more favorably than gatherings with comparable risks, such as public lectures, concerts or theatrical performances.

As usual, the strongest dissent was by Sotomayor, who wrote, “Amidst a pandemic that has already claimed over a quarter million American lives, the court today enjoins one of New York’s public health measures aimed at containing the spread of COVID-19 in areas facing the most severe outbreaks.” Citing the earlier majority opinions upholding church service restrictions, she noted they provide a “clear and workable rule”: “They may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict.”

Cuomo’s policies are more lenient to houses of worship than similar activities, Sotomayor wrote, and Gorsuch “does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking and singing in close proximity indoors for extended periods of time.” She added: “The Constitution does not forbid states from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives.”

Trouble ahead
As New York Times Supreme Court reporter Adam Liptak points out, the ruling is “almost certainly a taste of things to come.” When Ginsburg was alive, Liptak writes, “Roberts voted with the court’s four-member liberal wing” in a number of major cases. This ruling clearly signals that the new SCOTUS majority is ready to move full steam ahead to weaponize and redefine religious liberty at the expense of the protections of the Establishment Clause separating religion from government. And the consequences, in this case, may be deadly.

The ACLU’s Daniel Mach puts it aptly, “The freedom to worship is one of our most cherished fundamental rights, but it does not include a license to harm others or endanger public health.” As the Freedom From Religion Foundation has been emphasizing since the pandemic began, Americans have the right to free exercise, but not to risk other peoples’ lives.

The Freedom From Religion Foundation is a national nonprofit organization with more than 33,000 members across the country, including over 1,700 members in New York. FFRF’s purposes are to protect the constitutional principle of separation between church and state, and to educate the public on matters relating to nontheism.

Freedom From Religion Foundation

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