Posts published in December 2020

The Court broke important new ground when it struck down New York’s discriminatory COVID19 public health restrictions. 

The Supreme Court decision striking down COVID19 public health restrictions that discriminate against religious observers in contravention of the First Amendment is important for several reasons which have not been fully remarked upon.

This is in part because of the timing of the Court’s decision. Roman Catholic Diocese of Brooklyn v. Cuomo was handed down just hours before the start of the Thanksgiving Day holiday and soon was eclipsed by the political drama surrounding the 2020 election.

Moreover, the losers in this case—Cuomo and other Democratic governors indifferent or hostile to the imperatives of religious liberty—have downplayed the importance of the decision.

Cuomo, for instance, said the ruling “doesn’t have any practical effect” because, prior to the Court’s decision, he had removed the restrictions on religious services.

Cass Sunstein, likewise, says “the decision is hardly pathbreaking”; and that “it’s wrong to say the decision shows the sudden ascendancy of a new conservative majority” on the Court.

Really? In truth, as Jacob Sullum observes:

This is the third time that the Court has considered applications for emergency injunctions against pandemic-inspired limits on religious gatherings.

In the two earlier cases, involving restrictions imposed by California and Nevada, the Court said no.

Those decisions were backed by Chief Justice John Roberts, along with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented both times.

This time around, the replacement of Ginsburg with Amy Coney Barrett proved decisive, as the recently confirmed justice sided with Thomas et al. in granting the injunction sought by the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, which sued on behalf of the Orthodox synagogues it represents.

In short, contra Sunstein, there is a new conservative or originalist majority on the court, thanks to the arrival of Justice Barrett. And, as Sunstein correctly points out, this new conservative majority “will be highly protective of the rights of religious believers.

“The core of the case,” he explains, “was a claim of discrimination against churches and synagogues…

[Despite the 5-4 decision], everyone on the court agreed that if New York discriminated against houses of worship, its action would have to be struck down, pandemic or no pandemic. That idea breaks no new ground.

Of course, the principle at stake here—religious liberty—breaks no new ground because it is explicitly inscribed into the First Amendment of the Constitution.

But where new ground is broken is in the willingness of the Court, finally, to protect religious liberty against government encroachment during a pandemic or public health emergency.

“Even if the Constitution has taken a holiday during this pandemic,” writes Justice Gorsuch, “it cannot become a sabbatical… [The] courts must resume applying the Free Exercise Clause. Today, a majority of the Court makes this plain.”

The four dissenters argued that the Court should refrain from providing injunctive relief to religious observers because Cuomo had since rescinded his discriminatory restrictions against religious ceremonies. But as the majority pointed out:

It is clear that this matter is not moot… Injunctive relief is still called for because the applicants are under a constant threat that the area in question will be reclassified as red or orange…

The Governor regularly changes the classification of particular areas without notice. If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained.

The Court’s decision is important for two other reasons:

Secular Indifference. First, as Ron Brownstein notes in The Atlantic, demographically, America is becoming much less religious and far more secular. The danger, then, is that Americans will become increasingly indifferent to religious liberty and willing to countenance state encroachments on fundamental First Amendment rights.

Of course, this would be unthinkable to earlier generations of Americans who came to this country fleeing religious persecution precisely to enjoy religious liberty. This is significantly less true of recent generations of Americans, who are much more secular in their outlook.

Justice Gorsuch, in fact, warns that, “in far too many places, for far too long, our first freedom has fallen on deaf ears… We may not shelter in place,” he writes, “when the Constitution is under attack. Things never go well when we do.”

That the Court will act to protect religious liberty and the Constitution from an increasingly secular populace for whom religious liberty means very little is no small thing.

Justice Gorsuch. Second, Justice Gorsuch’s concurring opinion is a ringing defense of religious liberty. This is important because, less than six months ago, Gorsuch wrote the majority opinion in Bostock v. Clayton County, which many feared might upend religious liberty in America.

In Bostock v. Clayton County, Gorsuch discovered that, unbeknownst to the legislators who drafted the law, Title VII of the Civil Rights Act of 1964 prohibits employment discrimination because of sexual orientation or gender identity.

As David French observed, for religious institutions, the consequences of that ruling are potentially dramatic.

Should Christian colleges and schools be subject to lawsuits for upholding church teachings on human sexuality?

Does this case mean that the law now views Christians as akin to klansmen, and thus brings religious institutions one step closer to losing their tax exemptions?

French did not think so, noting that, in his decision,

Justice Gorsuch goes out of his way to reassure that the guarantee of free exercise of religion “lies at the heart of our pluralistic society.”

…[Moreover], there are a series of cases already on the court’s docket that are likely (based on judicial philosophy and court trends) to [protect religious liberty to a considerable extent].

…Stay tuned!

I, too, was skeptical that Bostock v. Clayton County was a far-reaching defeat for religious liberty. “Don’t be too despairing,” I wrote.

While the result in this case is regrettable and worrisome, all is not lost. This is one case that hinges on one statute. And while its effects will be longstanding and widespread, the damage can be contained by both Congress and the Court in future legislation and in future cases.

Well, the ruling in one such future case is now in, and it is a resounding win for religious liberty, with a ringing concurring opinion authored by the very same justice (Gorsuch) who wrote the majority opinion in Bostock v. Clayton County.

This surely bodes well for religious liberty on the Court and in America.

The bottom line: Roman Catholic Diocese of Brooklyn v. Cuomo is a very important decision because it heralds the rise of a new conservative or originalist majority on the Court that will act to protect religious liberty against government encroachment even if doing so is politically unpopular.

And Justice Gorsuch at least sees no necessary contradiction between jurisprudence that protects religious liberty and jurisprudence that protects the rights of gay men and women.

Stay tuned.

Feature photo credit: Justice Neil Gorsuch in The Federalist.