Religion and the Courts

On, Monday, November 26, 2020, in a 5-4 decision, the US Supreme Court ruled that limitations ordered by New York State upon religious gatherings in places of worship as protective measures against the COVIS-19 virus are unconstitutional.

The ruling was unusual for a number of reasons. Perhaps the most curious one was the fact that the restrictions challenged had lapsed weeks earlier, meaning that the harm or injury claimed no longer existed. Generally, when an issue is moot such as this, courts, especially SCOTUS, refrain from rendering a decision. As one media report noted, the decision was more about the court than freedom of religion.

The lead plaintiff in the complaint was the Catholic Diocese of Brooklyn, along with an orthodox Jewish organization.  Court observers have been musing since the appointment of Amy Coney Barrett, a Catholic, about the potential influence of six of nine members who identify as Catholic (Roberts, Sotomayor, Thomas, Alito, and Kavanaugh).  Four (Barrett, Kavanaugh, Alito, and Thomas) joined the majority here, along with Gorsuch. There was no majority opinion but several concurring ones, joined in some instances by others.

In one dissent, Chief Justice Roberts argued that the restrictions were moot, requiring no ruling by the Court. In a companion dissent, Associate Justices Sotomayor and Elena Kagan, wrote:

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.

The opinion was labeled per curiam (by the Court as a whole) and permitted an injunction against administrative orders issued by New York’s Governor Andrew Cuomo, also a Catholic. The majority agreed that the health regulations violated the First Amendment:

Even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

The phrase “barring many from attending religious services” presents a difficult standard, as the regulations did not bar any individuals from attending, only limiting the number of attendees. Thus, whereas the freedom of religion provision has tended to be interpreted as personal or individual, the majority viewed a size limitation as the functional equivalent of an infringement on a personal right.

The phrase “barring many from attending religious services” presents a difficult standard, as the regulations did not bar any individuals from attending, only limiting the number of attendees. Thus, whereas the freedom of religion provision has tended to be interpreted as personal or individual, the majority viewed a size limitation as the functional equivalent of an infringement on a personal right.

A separate concurring opinion by Gorsuch took on an entirely different flavor, criticizing the New York governor.

AJ Gorsuch compared the effect of the regulations, determining that that the restrictions on churches and synagogues were applied unfairly, categorized along with “hardware stores, acupuncturists, and liquor stores, bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents”, and was thus a clear violation of the free exercise clause in the First Amendment. Not content with legal analysis, Gorsuch continued in something of a more personal critique:

Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.

From Pope Francis: Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate…. As if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom!

SCOTUS observers panning for a Catholic bloc were disappointed. Two of the Court’s Catholics were in the minority while four voted in the majority. The tea leaves appear not to offer any predictable alliances, at least in this determination . Perhaps, however, more interesting was a New York Times Op-Ed published the following day authored by Pope Francis. The excerpts capture the differences of opinion between the SCOTUS majority and the Pontiff:

Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate.

It is all too easy for some to take an idea — in this case, for example, personal freedom — and turn it into an ideology, creating a prism through which they judge everything.

As if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom!

If not clearly in opposition, the two sets of opinions are at least apposite. The American view of this conflict as expressed by the SCOTUS majority reflects a political, i.e. conservative, bias, and not necessarily a religious one. For this reason, any Know Nothings remaining in the 50 states will find no purchase in anti-Catholicism – yet.

The column by Pope Francis argued, in essence, that the lives to be saved by governmental regulations are more crucial to humanity than the anti-lockdown protests. The SCOTUS majority, on the other hand, preferred a populist, more political jurisprudence, similar to the “Give me Liberty or Give Me Death” slogans favored by the anti-mask factions. Who would believe ideology could be fatal? Or that a more measured response concerning religion and the state would be voiced from the Vatican than one from the Supreme Court?



Categories: CIVIL RIGHTS, Health Care, Issues, National, pandemic, RULE OF LAW, SCOTUS

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