When the government does something that it doesn’t want the public to pay too much attention, it announces it in a Friday night news dump. If it occurs on a Friday before a long holiday weekend, even better.
The U.S. Supreme Court has clearly learned this tactic. A few minutes before midnight on Wednesday, before the long Thanksgiving Day holiday weekend, the justices issued six opinions in upholding challenges from churches and synagogues to state pandemic restrictions on religious services.
The New York Times reported, Midnight Ruling Exposes Rifts at a Supreme Court Transformed by Trump:
A few minutes before midnight on Wednesday, the nation got its first glimpse of how profoundly President Trump had transformed the Supreme Court.
Just months ago, Chief Justice John G. Roberts Jr. was at the peak of his power, holding the controlling vote in closely divided cases and almost never finding himself in dissent. But the arrival of Justice Amy Coney Barrett late last month, which put a staunch conservative in the seat formerly held by the liberal mainstay, Justice Ruth Bader Ginsburg, meant that it was only a matter of time before the chief justice’s leadership would be tested.
On Wednesday, Justice Barrett dealt the chief justice a body blow. She cast the decisive vote in a 5-to-4 ruling that rejected restrictions on religious services in New York imposed by Gov. Andrew M. Cuomo to combat the coronavirus, shoving the chief justice into dissent with the court’s three remaining liberals. It was one of six opinions the court issued on Wednesday, spanning 33 pages and opening a window on a court in turmoil.
The ruling was at odds with earlier ones in cases from California and Nevada issued before Justice Ginsburg’s death in September. Those decisions upheld restrictions on church services by 5-to-4 votes, with Chief Justice Roberts in the majority. The New York decision said that Mr. Cuomo’s strict virus limits — capping attendance at religious services at 10 people in “red zones” where risk was highest, and at 25 in slightly less dangerous “orange zones” — violated the First Amendment’s protection of the free exercise of religion.
Wednesday’s ruling was almost certainly a taste of things to come.
I’ll digress here to an analysis in The Atlantic by Howard Gillman and Erwin Chemerinsky which warned of The Weaponization of the Free-Exercise Clause:
There was a time when the Constitution’s protection of the “free exercise” of religion was a sort of shield, a protection for religious minorities from the prejudices of the powerful. No longer. The Supreme Court’s conservative majority is in the process of transforming this First Amendment clause into a sword that politically powerful Christian conservatives can use to strike down hard-fought advances in civil rights, especially for LGBTQ individuals and women.
At issue is whether religious believers who object to laws governing matters such as health care, labor protections, and antidiscrimination in public accommodations should have a right to an “exemption” from having to obey those laws. In recent years, religious pharmacists have claimed that they should not be required to fill prescriptions for a legal and authorized medical procedure if that procedure is inconsistent with their beliefs. A court clerk whose religion defined marriage as a union of a man and woman has claimed a free-exercise right to refuse marriage licenses to same-sex couples who have a constitutional right to marry. Religious business owners, such as bakers and florists, who object to same-sex marriage have claimed a right to refuse service to same-sex couples. And employers have successfully asserted a right to deny their workers health-care benefits that they would otherwise be entitled to, such as contraception or abortion counseling.
Providing such religious exemptions has required a dramatic change in the law by the Supreme Court. In 1990, in Employment Division v. Smith, the Supreme Court held that the free-exercise clause of the First Amendment cannot be used as a basis for an exception to a general law, no matter how great the burden on religion, unless the government’s action can be shown to be based on animus to religion. The case involved a claim by Native Americans for a religious exception to an Oregon law prohibiting consumption of peyote.
Justice Antonin Scalia wrote the opinion for the Court ruling against the Native Americans and explained that it would be impossible to provide religious exemptions from civic obligations whenever a person disagreed with the law—there are just too many civic obligations and too many different religious views about those obligations. Also, if the government were to begin down this path, it inevitably would face the impossible task of defining a “religious” belief. Such an approach would force the Court to make intrinsically controversial and discriminatory decisions about which religious views were most deserving of special accommodation and which social values should be considered less important than the favored religious views.
Note: Scalia provided a list of regulations for which religion provided no excuse: “compulsory military service,” “the payment of taxes,” “health and safety regulation[s],” “vaccination laws,” “drug laws,” “traffic laws,” “minimum wage laws,” and “child labor laws.”
This decision was in line with the approach taken by the Supreme Court, in almost all cases, through American history. Courts long held that the Constitution did not require an exception to general laws on account of religious beliefs[.]
* * *
Unfortunately, the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith. If they do so, the Supreme Court’s conservative majority will in essence be saying that the views of Christian conservatives are more important than legal protections for workers and people who seek to engage in ordinary commercial activity without suffering discrimination.
The authors conclude:
Creating a free-exercise right to flout laws that protect other people would entangle judges in endless claims about which religions deserve this special treatment, to the great detriment of true religious liberty. Conservative Christians claim that if they are not given a privileged position in the political system to harm people in these ways, the government is demonstrating hostility to religion. But requiring religious people in the ordinary course of their lives to follow the rules that apply to everyone else is not hostility; it is equality.
In the instant case, five conservative justices have rejected science and public health officials desperately trying to stop the community spread of the coronavirus pandemic that is raging out of control because of anti-maskers who believe the virus is a hoax, and others who object to to their personal liberty being violated by public health and safety regulations regarding social distancing and congregate gatherings.
There have been numerous reports of churches having been the superspreader source of a coronavirus outbreak. There is no denying this fact.
Yet these five conservative justices held that the free exercise of the religious is more important than general laws to protect the public health and safety against the spread of a deadly pandemic virus. It is essentially a “get out of jail free” card for the religious to flout the general laws that apply to everyone else, and to engage in reckless and irresponsible behavior that endangers their fellow congregants, their family and friends, and the public at large.
We have come a long way from Typhoid Mary (Mary Mallon), an asymptomatic carrier of typhoid fever believed to have infected 53 people, three of whom died. Because she persisted in working as a cook, exposing others to the disease, she was twice forcibly quarantined by authorities. Mallon spent the rest of her life in quarantine.
Returning to the Times:
On Wednesday, Justice Kavanaugh issued a conciliatory concurring opinion emphasizing that he agreed with much of what Chief Justice Roberts had written in dissent.
“I part ways with the chief justice,” he wrote, “on a narrow procedural point.” That point — whether the court should act immediately, notwithstanding Mr. Cuomo’s decision to lift the challenged restrictions for the time being — was, however, enough to decide the case.
The majority opinion was unsigned, but Ross Guberman, an authority on legal writing and the author of “Point Taken: How to Write Like the World’s Best Judges,” said he suspected that its principal author was the newest justice.
“My money is on Justice Barrett,” Mr. Guberman said, pointing to word choices that echoed her opinions on the United States Court of Appeals for the Seventh Circuit. Among them, he said, was “the concession that justices ‘are not public health experts,’” and “the taste for ‘And,’ ‘But,’ and ‘show.’”
The unsigned opinion was mild and measured, which is also characteristic of Justice Barrett’s judicial work. It took issue with what it said were Mr. Cuomo’s unduly harsh restrictions, which had been challenged by, among others, the Roman Catholic Diocese of Brooklyn and two synagogues, the latter of which had argued that Mr. Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”
The majority opinion said less restrictive measures would work.
“Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue,” the opinion said. “It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the state allows.”
The opinion said the state had treated secular businesses more favorably than houses of worship.
“The list of ‘essential’ businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities,” the opinion said.
The most notable signed opinion came from Justice Neil M. Gorsuch, Mr. Trump’s first appointee. His concurrence was bitter, slashing and triumphant, and it took aim at Chief Justice Roberts, whose concurring opinion in the California case in May had been relied on by courts around the nation to assess the constitutionality of restrictions prompted by the pandemic.
For a deeper analysis of Gorsuch’s opinion see Aaron Keller, Gorsuch Took Aim at Legal Root of Abortion, Birth Control Law While Trashing Chief Justice and Gov. Cuomo. Shorter version in this tweet from law professor Laurence Tribe:
The scariest thing in the concurring opinion of Justice Gorsuch is his dissing of the “implied right to ‘bodily integrity,’ … that some [judges] have found hiding in the Constitution’s penumbras” (scare quotes his). As in Skinner, Griswold, Roe, Casey?!!https://t.co/2pO3dB5xYv
— Laurence Tribe (@tribelaw) November 26, 2020
The chief justice’s basic point was that government officials, in consultation with scientific experts, were better positioned than judges to make determinations about public health. But Justice Gorsuch wrote that the opinion, in South Bay Pentecostal Church v. Newsom, was worthless.
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” he wrote. “Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause. Today, a majority of the court makes this plain.”
“We may not shelter in place when the Constitution is under attack,” Justice Gorsuch wrote. “Things never go well when we do.”
Chief Justice Roberts responded, in a tone suggesting that his patience was being tested, that there was no need to act because Mr. Cuomo had, for the time being, lifted the restrictions.
“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” he wrote. “And it may well be that such restrictions violate the Free Exercise Clause. It is not necessary, however, for us to rule on that serious and difficult question at this time.”
The court’s three liberal members were to varying degrees prepared to support the restrictions. Chief Justice Roberts made a point of defending his colleagues from Justice Gorsuch’s attacks, saying they were operating in good faith.
“To be clear,” the chief justice wrote, quoting from Justice Gorsuch’s concurring opinion, “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 ‘sheltering in place when the Constitution is under attack.’ They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
In a separate dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was being reckless. Justice Sotomayor Upbraids SCOTUS Majority for ‘Playing a Deadly Game’ With COVID Restrictions:
“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,” the liberal justice wrote.
Sotomayor pointed out the false comparisons at the heart of the religious institutions’ arguments which compared brief shopping trips to attending indoor religious services, a mistake she said was repeated by Justice Neil Gorsuch’s concurrence to the court’s per curium order.
“Undeterred, Justice Gorsuch offers up his own examples of secular activities he thinks might pose similar risks as religious gatherings, but which are treated more leniently under New York’s rules (e.g., going to the liquor store or getting a bike repaired),” she wrote.
“But JUSTICE 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. Unlike religious services, which ‘have every one of th[ose] risk factors,’ 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.”
Sotomayor also highlighted the intellectual dishonesty in the religious institutions’ claims that Gov. Cuomo’s comments about heightened rates of infection among New York’s Orthodox Jewish populations were discriminatory and require the court apply strict scrutiny to the case, contrasting his comments with President Donald Trump’s statements regarding the “Muslim Ban.”
“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,’” she wrote, noting that those comments did not meet the “minimum requirement of neutrality” towards religion.
Notably, the Catholic Sotomayor was joined in her dissent by Justice Elena Kagan, who is Jewish and rarely joins with her colleague’s more acerbic dissents.
Justice Samuel Alito, who was part of the majority in the above cases, nevertheless later flatly rejected a plea by a Louisiana megachurch pastor to keep his church fully open against orders from the government to limit the size of worship gatherings due to the COVID-19 pandemic. Alito Slaps Down Megachurch Pastor’s Lawsuit That Claimed Obeying God Meant Ignoring COVID-19 Orders:
That pastor, Tony Spell, whose full legal name is Mark Anthony Spell, earlier this year opened his doors to some 1,800 congregants in violation of orders by the governor that limited the size of gatherings and required social distancing measures.
The application, styled as Spell v. Edwards, complained that the orders by Gov. John Bel Edwards forbade the Life Tabernacle Church from being “fully assemble[d].” In a more legally astonishing question, the case also sought to ask whether the “First Amendment give[s] the Church exclusive jurisdiction over whether to assemble or not.” In other words, the church sought to have the Supreme Court declare its assembly function as beyond state action or reproach.
“The pastor and his church lost previous rounds of litigation in the district and circuit courts, and Alito’s rejection of the matter means the end of the line legally for the petitioners’ visions of church primacy over government.”
Don’t be so certain. A future plaintiff might succeed in weaponizing the free exercise clause with this Supreme Court.