Religious liberty could be getting a new crack at the nation’s highest court.
Months after 5-4 rulings by the Supreme Court supported strict limits on religious congregations in California and Nevada, the high court is expected to decide this week whether to hear a new challenge to coronavirus restrictions on the freedom to worship from the other side of the country.
And the newest Supreme Court justice could play a key role in the outcome.
A lawsuit brought by the Catholic Diocese of Brooklyn, New York, is challenging New York Gov. Andrew Cuomo’s limits on public gatherings — including religious services.
In affected areas, houses of worship have been limited to attendance of 25 percent of a building’s capacity, or 10 individuals, whichever is fewer, according to The Wall Street Journal.
That’s because a Cuomo executive order, which was issued in October in response to a resurgence of coronavirus cases in the state, does not consider religious services to be “essential.”
“If we were essential, you’d have to look at us differently — whether we were a grocery store or a pharmacy,” Brooklyn Bishop Nicholas DiMarzio told The Journal last week. “We have been relegated with the bowling alleys.”
To many Democrats and probably most liberals, that’s precisely where houses of worship belong — religious activities in the world of the secular left probably rate lower than the Thursday night bowling league.
But to millions of Americans, worship services are as essential as food on the table or a well-stocked medicine cabinet. And the Founders of the nation took religious freedom seriously enough to make protecting it the first order of business in the First Amendment to the Constitution — ahead of freedom of speech, freedom of the press and the right of assembly.
In May, the Supreme Court voted narrowly in favor of California Gov. Gavin Newsom in the case of South Bay United Pentecostal Church vs. Newsom, in which the church argued that its First Amendment rights were violated by a Newsom executive order limiting capacity.
In June, a case from Nevada argued that the Silver State’s coronavirus restrictions “violated the Constitution by treating church services differently than other large gatherings such as casinos, gyms and restaurants.”
In both cases, Chief Justice John Roberts sided (with dreary predictability these days) with the court’s liberal wing.
“Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods,” Roberts wrote in the California case.
Right. So to the court’s liberals — and Chief Justice Roberts — churches, synagogues and mosques are more similar to concerts, spectator sports and theatrical performances than absolute necessities like grocery stores, banks and laundromats.
Funny how grocery stores, banks and laundromats (or the 18th-century equivalent) didn’t make it into the Constitution — much less the First Amendment.
Justice Samuel Alito, who dissented from the decision — along with Justices Kavanaugh, Gorsuch and Thomas — did not submit a written objection to the majority’s decision, but made his feelings about the decision clear in a speech earlier this month.
In an address to the Federalist Society, Alito recounted in scathing terms the abridgments of American liberties that have taken place during the coronavirus pandemic.
And cited the rulings about religion as an example.
“Over the summer, the Supreme Court received two applications to stay COVID restrictions that blatantly discriminated against houses of worship, one from California, one from Nevada,” Alito said, according to a transcript published on Reason.com’s The Volokh Conspiracy.
“In both cases, the court allowed the discrimination to stand. The only justification given was that we should defer to the judgment of the governors because they have the responsibility to safeguard the public health.”
Alito used the Nevada case to make his point. The state’s rules limited houses of worship to 50 individuals but allowed casinos to operate at 50 percent capacity. (Since casinos are “enormous,” Alito said, that’s a lot more than 50 people.)
“Now deciding whether to allow this disparate treatment should not have been a very tough call. Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause.”
That’s not just conservative thinking, that’s just common sense (though the two are often curiously in sync.)
But as it turns out, there’s reason to hope that at least one of the five votes that backed California and Nevada in the May case will turn out differently if the court agrees to hear the Brooklyn Diocese challenge to Andrew Cuomo.
The late Justice Ruth Bader Ginsburg, part of the court’s majority in May and June, has been replaced by Justice Amy Coney Barrett, whose understanding of constitutional law is shaped by the originalism of her mentor, the late Justice Antonin Scalia.
It’s a good bet that Barrett’s originalist view of the Constitution is a lot closer to Alito’s viewpoint than the late Justice Ginsberg’s — and that Barrett understands that the nation’s founding document does not even mention craps or black jack or slot machines, but does defend the fundamental right of religious freedom.
There’s no guarantee yet that the high court will even take up the case. And if it does, there’s no guarantee a ruling will go in favor of the Diocese of Brooklyn.
But conservatives have every reason to hope that in a second crack before the high court, religious liberty will win out.
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