This column expresses the views of Tony Mauro, special correspondent for the Freedom Forum.
Just before midnight on Thanksgiving Eve, the Supreme Court issued an opinion that undoubtedly disrupted turkey day for those who monitor the evolution of First Amendment doctrine — but did not appear to break new legal ground.
By a 5-4 vote the court blocked, temporarily at least, orders imposed by New York State that sharply limited the number of attendees at religious services because of the COVID-19 pandemic. The unsigned opinion asserted that the orders violated the Free Exercise Clause of the First Amendment because they “single out houses of worship for especially harsh treatment.” Hardware stores, acupuncturists and liquor stores were among establishments that were immune from similar restrictions.
Was the decision in Roman Catholic Diocese of Brooklyn, N.Y. v. Andrew M. Cuomo a sign that the high court has changed course on religion cases, now that conservative Amy Coney Barrett has replaced the late liberal Ruth Bader Ginsburg? Does the decision give free rein to religious organizations to ignore government regulations of all kinds?
“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,” said Daniel Mach, director of the Program of Freedom of Religion and Belief for the American Civil Liberties Union.
Eric Rassbach, vice president and senior counsel at Becket Fund for Religious Liberty, countered, “Treating synagogues and churches worse than the pet stores, liquor stores and department stores just didn’t make any sense … The Supreme Court was right to step in and allow Jews and Catholics to worship as they have for centuries.”
One point seemed certain: Justice Barrett was a key player in the decision. While it was an unsigned “per curiam” decision — a method occasionally used when opinions are brief and hasty — at least one expert thinks Barrett was the author. Ross Guberman, a connoisseur of Supreme Court jargon and writing style, told The New York Times that because of the tenor and word usage of the decision, “My money is on Justice Barrett” as the author.
As to the bigger question whether the decision breaks new First Amendment ground, that may be debated for a long time. When the Supreme Court faced similar pandemic cases before Ginsburg died, the court ruled in favor of restrictions. Barrett’s background and testimony at her confirmation hearings made it clear she will be a protector of religious causes.
But Cass Sunstein, a Harvard Law School constitutional law professor, argued in an opinion piece for Bloomberg that the decision was not a prelude to a major shift in Free Exercise Clause jurisprudence.
“The decision is hardly pathbreaking and it doesn’t signal much at all,” Sunstein wrote. “If it is to be taken (as) a signal, it should be of something more specific: the existence of a majority that will be highly protective of the rights of religious believers.”
And that in itself is not that new. Sunstein noted that “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.”
The majority opinion itself, even though it halted the restrictions on attendance at churches and synagogues in New York, did not demand a free-for-all status for religious organizations when it comes to public safety. “There are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue,” the opinion stated. “Members of this court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten.”
Justice Brett Kavanaugh, who joined the majority, also said, “In light of the devastating pandemic, I do not doubt the state’s authority to impose tailored restrictions — even very strict restrictions — on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances give the First Amendment interests at stake.”
For their part, the dissenters also acknowledged that restrictions like those imposed in New York could cross a line.
Chief Justice John Roberts Jr. said in his concurrence, “Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause.”
Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, also chimed in: “The State of New York will, and should, seek ways of appropriately recognizing the religious interests here at issue without risking harm to the health and safety of the people of New York.”
And Sotomayor, joined by Kagan, wrote another dissent, reiterating, “Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. 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.”
Sunstein summarized, “For officials who are seeking to control the pandemic, the court’s decision is also no big deal. Nothing in it would forbid stringent restrictions on churches and synagogues, so long as those restrictions are imposed on other, similar institutions as well. What’s required is neutrality.
“If the ruling has broader importance, it’s because it’s part of a tendency, to which Barrett can be expected to contribute, to be highly protective of religion and religious organizations — and to their claims of discrimination and excessive intrusion by state and federal governments.
“For the new administration of President-elect Joe Biden and for state and local officials, there’s a warning sign: Anything that smacks of discrimination against religious organizations will run into trouble, pandemic or no pandemic.”
Tony Mauro is contributing U.S. Supreme Court correspondent for the National Law Journal and ALM Media and a special correspondent for the Freedom Forum.