Don’t read too much into Supreme Court religion ruling
The Supreme Court’s 5-4 decision last Wednesday night, striking down New York State restrictions on the number of people who can attend religious services during the coronavirus pandemic, is being taken as a signal of the emergence of a newly aggressive conservative majority. It’s easy to see why. The majority in the religion case included the court’s newest member, Justice Amy Coney Barrett, alongside the most conservative of her colleagues: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
The dissenters included Chief Justice John Roberts, also conservative but more moderate in his voting patterns – who has been the swing vote in divided decisions for the last year.
Notwithstanding the public reaction, the decision is hardly pathbreaking. 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.
The core of the case was a claim of discrimination against churches and synagogues. New York Gov. Andrew Cuomo had issued an order stating that in certain pandemic-infected areas, deemed “red zones,” only 10 people could attend religious services. In less dangerous areas, deemed “orange zones,” the cap was 25.
In the majority’s opinion, the court did not say that these restrictions would be unacceptable if they had been imposed on all gathering places. It said that the problem was that they singled out houses of worship “for especially harsh treatment.” To justify that claim, the court emphasized that “essential” businesses could allow as many people as they wished.
Those essential businesses included grocery stores, banks, acupuncture facilities, campgrounds, garages and transportation facilities. In a separate concurring opinion, Gorsuch put the point vividly: “While the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques.”
In a dissenting opinion, Roberts made a procedural point: It was not the right time for the court to intervene, because Cuomo had loosened the restrictions after the case was filed, eliminating the numerical limits previously faced by houses of worship.
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.
It’s wrong to say that the decision shows the sudden ascendency of a new conservative majority. 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.
In 2014, for example, a 5-4 ruling invalidated regulations under the Affordable Care Act that required family-owned companies with religious objections to provide health-insurance coverage for contraceptives. And in 2018, a divided court held that a Christian baker had a constitutional right to refuse to create a wedding cake for same-sex couples.
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.
Cass R. Sunstein is a Bloomberg Opinion columnist.