Religion wins at Supreme Court

Public health loses, and privacy’s at risk

Balancing public health against the right to free exercise of religion poses a difficult challenge amid the COVID-19 pandemic. So when cases from California and Nevada reached the Supreme Court earlier this year, the justices deferred to the judgment of their governors, who are, after all, accountable to the people.

But those cases were decided by 5-4 margins before Justice Ruth Bader Ginsburg died in September. The court changed its tune late Wednesday night, when her replacement — Amy Coney Barrett — and the four earlier dissenters formed a new 5-4 conservative majority that invalidated restrictions on worship services in hot zones designated by New York Gov. Andrew Cuomo.

The ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, brought by Catholic and Orthodox Jewish congregations, was especially notable because it was unnecessary. As Chief Justice John Roberts said in his dissent, by the time the court ruled, the New York houses of worship were not “subject to any fixed numerical restrictions.”

Extremely conservative majority

The opinion, then, did nothing more than admonish New York to stop doing something it had already stopped doing. Even if the case wasn’t technically moot, there was no reason for the highest court in the land to intervene, without an oral argument or deliberation, to grant extraordinary relief.

The Roman Catholic Diocese ruling is also far-reaching in its substance. The unsigned majority opinion decries what it deems discrimination against religion because worship services were subject to capacity limits while some essential business were not. Likewise, Justice Neil Gorsuch complains in a concurrence that under some circumstances, New Yorkers in a hot zone were permitted to crowd into a liquor store or a bike shop but not a church, synagogue or mosque. Justice Brett Kavanaugh registers the same complaint about grocery stores and pet shops.

Those comparisons are inapt. Government discriminates illicitly when it fails to treat like cases alike. One needn’t discount people’s spiritual needs to recognize that liquor stores, bike shops, groceries and pet shops differ from churches, synagogues and mosques with respect to public health. The risk of coronaviral spread is not merely a function of the number of people at a venue; it increases dramatically as they linger in a stationary position, especially when they speak or sing.

Though religious gatherings face greater restrictions than less risky activities like shopping, they are actually treated more favorably than comparably risky secular activities, such as public lectures, concerts and theatrical performances — as the trial judge in the Roman Catholic Diocese case observed. For the Supreme Court’s new and extremely conservative majority, it seems, failure to sufficiently discriminate in favor of religion counts as discrimination against religion.

Tone-deaf focus on liberty

Moreover, the court’s majority didn’t appear to appreciate the challenge Cuomo faced. Any line the state draws in this realm is bound to be crude, but the alternatives are still worse: A blanket ban on all large gatherings with no exceptions would be excessive; no restrictions would have literally deadly consequences; specific determinations focusing on, say, the duration or volume of songs, would entangle religious institutions with government.

The court’s disregard for the state’s quandary and extreme solicitude for religious plaintiffs is not surprising. Even before Ginsburg’s death, the case law was moving toward an expansive view of impermissible discrimination against religion and a scaled-back requirement of church-state separation. Yet this decision broke new ground in suggesting that as religious rights expand, other rights will contract.

Consider the leading precedent establishing the power of government officials to limit individual freedom for the sake of public health. In the 1905 case of Jacobson v. Massachusetts, the court rejected a challenge to a local smallpox vaccination requirement. Roberts cited Jacobson in the California case to support the proposition that the Constitution places primary responsibility for guarding health and safety in the hands of elected officials.

But on Wednesday, Gorsuch appeared to cast doubt on the Jacobson precedent. He said it predates the court’s modern individual rights jurisprudence; it applied what we would now call the very deferential rational basis test. Was Gorsuch suggesting that the more searching test of strict scrutiny, widely considered so demanding that it is “fatal in fact” for nearly any policy subjected to it, should apply to public health measures?

That would echo recent statements by Attorney General William Barr and Justice Samuel Alito describing assembly limits and shelter-in-place orders as extreme restrictions on liberty. They are extreme, but when over a quartermillion Americans have died from a plague, it is at best tone deaf to focus on the temporary loss of liberty to the near exclusion of the permanent loss of life.

There is a more chilling reading of what Gorsuch wrote about Jacobson, however. He described Jacobson’s claim as “an implied ‘substantive due process’ right to ‘bodily integrity’ ” of the sort some jurists “have found hiding in the Constitution’s penumbras.”

Turning US into ‘Handmaid’s Tale’

These phrases — substantive due process, bodily integrity and penumbras — are legal dog whistles. Each is associated with Supreme Court precedents recognizing a right to privacy that encompasses contraception, abortion, child rearing, sexual partners, control over intimate private information and determination of how one faces death. Religion, Gorsuch clearly implied, is a genuine constitutional right enshrined in the text, whereas these other rights are just made up and not entitled to similar respect.

It is worth noting that the Ninth Amendment specifically instructs courts not to do exactly what Gorsuch did: “to deny or disparage” unenumerated rights. We hope that the conservative majority would not accept Gorsuch’s drastic constitutional overhaul.

If there are no unenumerated rights, then there is no right to privacy of any sort — a truly radical position espoused by the late Justice Antonin Scalia, joined by Justice Clarence Thomas, in a 2011 case. So long as the government comes into possession of people’s intimate secrets without conducting unlawful surveillance, they said, the Constitution provides no protection against disclosure.

After introducing his foreign policy team last week, President-elect Joe Biden proclaimed that “America is back.” In important respects, that will be true come Jan. 20. But at the Supreme Court, America is increasingly unrecognizable. A court that affords no protection to unenumerated rights to bodily integrity and privacy, while simultaneously eroding the separation of church and state, would look less like our familiar institution and more like the highest judicial authority of a place like Gilead — the theocratic and misogynist country in Margaret Atwood’s dystopian “The Handmaid’s Tale.”