Supreme Court Ranks Religion Above Public Health

Just before midnight on Thanksgiving Eve, the Supreme Court issued a temporary injunction that nullified New York's limits on how many could gather in public places. The restrictions are meant to control the spread of the coronavirus. The Court was responding to two lawsuits by
A bewildered Roberts eyes the majority.     Ann Telnaes, Washington Post
two religious organizations asking for emergency relief, one Catholic and one Jewish.

The Court issued its rulings out of its evident agreement that impairment of the right to congregate for worship constitutes an "emergency" whereas other cases typically take years to reach the Court if they reach it at all. The Wall Street Journal's editorial page was positively giddy with the Court's opinion. The first word of its editorial was "Wow". It continued with, "The Court is back as a sentinel protecting the free exercise of religion, even in a health emergency".

There are scores of similar lawsuits around the country. Other courts will likely take their cue from the Supreme Court's decision. A week after Thanksgiving the Court signaled to a California court that it needs to follow the New York decision in a case brought by a ministry that has churches across the state and wants Gov. Gavin Newsom's restrictions on indoor services lifted. A Journal news article quoted a lawyer in California anxious for such decisions to be made; he represents 170 churches in the state that would be freed to conduct Covid spreader services. The director of the program at the American Civil Liberties Union that champions freedom of religion nevertheless spoke out against the Court: "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".

The media took far greater immediate notice of Chief Justice John Roberts having lost control of his court thanks to the arrival of Amy Coney Barrett, a far right conservative who added a reliable fifth vote to the right end of the bench, whereas Roberts, perhaps undesirous of a court that will always be associated with his name being branded as extremely conservative, has frequently joined those on the left to impose balance. He did so once again, but with the liberals now reduced to three, with Ruth Bader Ginsburg replaced by Barrett, Roberts lost the power of being the swing vote in the 5-to-4 decision.

"Justice Barrett dealt the chief justice a body blow", said The New York Times. "The court’s most conservative justices distanced themselves from…Roberts", wrote The Washington Post. There were heated exchanges in six opinions written for this one case, which for the Journal "suggested that President Trump’s appointment of Justice Barrett already had reduced the influence of Chief Justice Roberts."

The opinions showed a rift on the right side of the Court, with Justice Neil Gorsuch taking aim at Roberts. In two earlier decisions while Ginsburg was serving, Roberts had sided with the liberal faction to allow governments in Nevada and California to impose crowd size limits on church services. Those opinions said that local officials should be free to follow health professionals' advice and

“should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people”.

That signaled to other states that they were free to do invoke their own limits on gatherings.

"That opinion was mistaken from the start", Gorsuch wrote, calling it "a particular judicial impulse to stay out of the way in times of crisis". In sharp jabs at Roberts he continued,

"Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical…We may not shelter in place when the Constitution is under attack.”

Cuomo's New York underwent weeks of horror, nearly 34,000 already dead, refrigerated trucks lined up at hospital receiving docks to take away the bodies this past spring, yet Gorsuch even stoops to insolence, snidely wisecracking…

"So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?"

One does not need to know what Roberts refers to in his dissenting opinion to sense that he is angry at colleagues' reproach when he writes, "It is not clear which part of this lone quotation today’s concurrence finds so discomfiting".

Justice Samuel Alito did not write a separate opinion but in a speech before the Federalist Society earlier in November he averred that the coronavirus pandemic has been used to place previously “unimaginable” restrictions on individual liberty. “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020", he said. How is it, he wondered, that governments can rule that speeches and concerts would be disallowed; that church pews would be empty on Easter and synagogues vacant on sacred holidays; that church attendance in Nevada would be limited while casinos can operate at 50% capacity? In his argument there is no recognition of possible existential threats — imagine a virus that kills half of those it infects — that warrant a pause in constitutional rights even when survival is at stake.

New York's Governor Andrew Cuomo had designated hot spots as red, where gatherings were limited to 10 people, or orange where the limit was 25. The rules were put in place because of a surge of cases in several Orthodox Jewish communities in Brooklyn, Queens and two suburban counties which had kept their schools open and refused to follow recommended precautions.

The case brought by Agudath Israel argues, "that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included". Both Agudath Israel and the second plaintiff, the Roman Catholic Diocese of Brooklyn, contend that "the regulations treat houses of worship much more harshly than comparable secular facilities". They point to seeming absurdities in the list of businesses regarded as "essential" that may admit as many people as desired, except that, unlike religion's facilities, they generally are not places where people congregate or are in close proximity, such as liquor stores, laundries, banks, or big box stores. Still, the two sizes fit all 10 and 25 limits pay no attention to the size of the religious facilities at issue. Almost all 26 Diocese churches can seat 500 people at a minimum, 14 can accommodate at least 700, and 2 more than 1,000. So a case was made that Cuomo's order was arbitrary and ill-designed.

The justices of course have the Constitution on their side. Everything hinges on the First Amendment unequivocally stating, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The justices' ruling states that "courts must resume applying the Free Exercise Clause. Today, a majority of the court makes this plain”. They could have in addition cited another clause in the First Amendment, "the right of the people peaceably to assemble". The unsigned ruling declared that "even in a pandemic, the Constitution cannot be put away and forgotten".

To be noted, however, is that the Court has struck down attendance restrictions entirely, leaving nothing in their place. It has decreed that religious observance takes precedence over public safety, that an illness that many describe as the worst they have experienced, an illness that can leave behind possibly lifelong debilitation for "long haulers", an illness that can result in the end of life — these are unfortunate but religion matters more.

The majority opinion decision quotes an earlier case, Elrod v. Burns of 1976: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”, In the face of a pandemic on a scale that hasn't happened for a hundred years, this was the plaintiffs' emergency argument:

"If only 10 people are admitted to each service, the great majority of those who wish to attend Mass on Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance."

Houses of worship, where congregants are seated close to one another, often singing, and for an extended period, are particularly viewed as Covid spreaders, with an abundance of instances reported. In Arkansas, for example, of 92 persons who attended events at a church in March, 35 became confirmed Covid-19 cases, and three died. Contract tracing found 26 additional persons who had been in contact with church members, one of whom died. Among those who attended events in October at a megachurch in In Charlotte, North Carolina, 187 were confirmed as Covid-19 carriers; eight have died. Yet church officials complained about restrictive measures as distressing, particularly in “difficult times” amid the coronavirus pandemic. That virus cases stemming from church services were adding to those difficult times was seemingly not apparent, with the church stating that “Daily services are fundamental to our beliefs". Alleviation of restrictions "preserves our right to worship God together as a community in the manner that is sacred and meaningful to us".

In an opinion joined by Justice Elena Kagan, Justice Sonia Sotomayor wrote, “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.” Mr. Cuomo, a third-term Democrat, said “You have a different court, and I think that was the statement that the court was making…We know who he appointed to the court. We know their ideology.”

The majority opinion allows spreader events at a time when over 90,000 are in hospital with Covid, the number of deaths is approaching 2,000 daily, and there is the acute danger that, with the contagion about to grow worse, we will see medical personnel decide they are fed up with a government that has been doing nothing in recent months, with shortages again of protective equipment, and now the highest court has elected to add to their burden.