Earlier this year, Justice Neil Gorsuch wrote one of the finest opinions in the Supreme Court’s recent history. His majority ruling in McGirt v. Oklahoma recognized that a large swath of that state is still tribal land. It displayed the moral and legal clarity that Americans expect from the high court. Gorsuch and four other justices rejected arguments that Oklahoma’s century of disregard for tribal sovereignty had effectively invalidated it. “That would be the rule of the strong, not the rule of law,” he wrote.
His perceptiveness in that case and others makes his concurring opinion in Roman Catholic Diocese of Brooklyn v. Cuomo that much more lamentable. In a 5–4 vote, the court constrained New York Governor Andrew Cuomo’s power to impose occupancy limits on houses of worship in New York on public health grounds. “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the majority said in an unsigned opinion. “But even in a pandemic, the Constitution cannot be put away and forgotten.”
At first blush, it can be difficult to see how these two cases relate to each other, or why the way Gorsuch’s opinions in each instance sound such alarming, discordant notes. But it’s hard to conclude that the court’s ruling was made in good faith. Moreover, it seems as if the Roberts court is poised to take a radical new approach to religious liberty and public health laws alike.
As I previously noted, Catholic Diocese of Brooklyn v. Cuomo loomed as a test case for the high court now that newly minted justice Amy Coney Barrett has cemented a 6–3 conservative majority. The lawsuit takes aim at the heightened restriction that Cuomo has placed on churches, synagogues, mosques, and the like as cases of Covid-19 spike anew. In New York, the occupancy of houses of worship is limited to 10 to 25 people, depending on whether they fall into what the state designates as a “red zone” or an “orange zone,” labels that are indicators of community spread of the virus. The diocese argues that these limits run afoul of the Constitution’s Free Exercise Clause, a three-judge panel in the Second Circuit Court of Appeals disagreed, and the matter has now proceeded to the high court.
One of the striking things about Catholic Diocese of Brooklyn v. Cuomo is that it ended up before the Supreme Court at all, as the case is effectively moot: The diocese is no longer in a red or orange zone, and so the purported infringements no longer apply. And Chief Justice John Roberts noted that even if this changes, the parties could simply renew their case directly to the justices. The Supreme Court typically reserves the “extraordinary remedy” of a preliminary injunction for extraordinary circumstances, Roberts noted. “An order telling the governor not to do what he’s not doing fails to meet that stringent standard,” he added. The court, apparently liberated from the constraint of not having enough votes, issued one anyway.
Like other conservatives’ dissents in Covid-19 cases this year, Gorsuch’s concurring opinion dripped with snark for public health officials as they navigated a global pandemic. He found it unacceptable that congregants were restricted from religious services while secular businesses remained open. “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,” he wrote. “Who knew public health would so perfectly align with secular convenience?”
The situation is not as clear-cut as Gorsuch wanted to believe. New York officials argued—and the lower courts accepted—that the houses of worship were treated like secular places that host gatherings that raise similar risks, such as concerts, lectures, and other types of public performances. “Justice Gorsuch does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time,” Justice Sonia Sotomayor noted. Those particular issues do not apply to bike shops or wine stores, where patrons neither loiter next to each other for lengthy periods nor break out in song.
Adding insult to injury, Gorsuch wrote derisively about his own colleagues. Barbed dissents are nothing new at the high court, of course, but it’s unusual to see a successful majority take jabs at the dissenters. Roberts, who wrote separately from the court’s three liberals, nonetheless rose to their defense. “To be clear, I do not regard my dissenting colleagues as ‘cutting the Constitution loose during a pandemic,’ yielding to ‘a particular judicial impulse to stay out of the way in times of crisis,’ or ‘shelter[ing] in place when the Constitution is under attack,’” he wrote, quoting from Gorsuch’s dissent. “They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
Why are the conservatives’ hackles so raised? This year has been a miserable experience in general. The justices, like millions of other Americans, have gone without seeing their co-workers in person for almost a year. Maybe that has taken a toll on the court’s collegiality. The unspoken target in the diocese case isn’t really Cuomo or other state officials who impose restrictions to fight the Covid-19 pandemic. It’s two major Supreme Court precedents: Employment Division v. Smith, a landmark ruling on religious freedom exemptions, and Jacobson v. Massachusetts, a case concerning mandatory vaccinations for smallpox that gave broad deference to public health officials in public health crises.
The conservatives’ critique of Jacobson is relatively straightforward. It reflects a simmering disdain on the right for the sweeping measures taken by state and local officials to reduce the coronavirus’s spread. Few of the lawsuits challenging those measures have succeeded, often because courts cite Jacobson to turn away complaints. In the public health context, American courts have long recognized that government officials have the power and responsibility to take actions that might not otherwise be tolerated in other contexts. A pandemic is, quite literally, a matter of life and death.
In a speech to the Federalist Society last month, Justice Samuel Alito suggested that this deference had gone too far. “All sorts of things can be called an emergency or disaster of major proportions,” he told the audience. “Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.” His colleagues on the right expressed similar views in dissenting opinions earlier this year. The math behind the outcomes in Covid-19 cases changed with Ruth Bader Ginsburg’s death in September and Justice Amy Coney Barrett’s confirmation in October.
Smith is slightly more complicated. The case centered on two men in Oregon who were denied unemployment claims by the state because they had lost their jobs for drug use—namely, for the ceremonial use of peyote as part of services in the Native American Church. In a 6–3 decision, the Supreme Court rejected their claim that Oregon had violated the Free Exercise Clause. Antonin Scalia, writing for the majority, concluded that the courts could not intervene on their behalf. “Generally applicable and neutral laws that incidentally burden the exercise of an individual’s religion do not offend the First Amendment,” he wrote. In response, Congress and many of the states passed laws like the Religious Freedom Restoration Act, which allow people with religious beliefs to challenge government laws and actions that violate their beliefs in certain circumstances.
That suited Scalia just fine. He took a pragmatic approach to how courts would have to wrestle with the Free Exercise Clause in these circumstances. Allowing believers to invoke it to carve out religious exemptions from general, nondiscriminatory laws would force judges to perform the unsavory task of evaluating the legitimacy and value of religious beliefs themselves. Giving this duty to legislatures was not ideal, he admitted, because it could disfavor minority religious groups. “But that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs,” he wrote.
Smith is a frequent target of criticism from the conservative legal movement and from the court’s conservative bloc, despite their admiration of Scalia himself. Indeed, the landmark ruling may also not be long for this earth. Earlier this term, the court heard arguments in Fulton v. City of Philadelphia, where it considered directly whether Smith should be overturned. The case involved a local Catholic adoption organization that refuses to work with same-sex couples, citing the church’s teachings on homosexuality. After Philadelphia stopped making referrals to the organization on anti-discrimination grounds, the group sued the city for violating the Free Exercise Clause and discriminating against it on the basis of religious belief, setting up a direct challenge to Smith.
The court has yet to issue a ruling in the case. But some of the court’s members apparently believe its reasoning is no longer operative. In the Brooklyn case, Justice Brett Kavanaugh wrote a concurring opinion, in which he claimed that New York’s “discrimination against religion raises a serious First Amendment issue and triggers heightened scrutiny, requiring the State to provide a sufficient justification for the discrimination,” citing Smith and another case. Sotomayor, in her own dissent, noted that neither Smith nor the other case established any such precedent. If anything, she noted, Smith stands for the “entirely inapposite proposition” of when people with religious beliefs can challenge neutral laws on Free Exercise Clause grounds.
If the Supreme Court were simply zealous about enforcing the First Amendment’s protections for religious freedom, its ham-fisted approach might be less troubling. But the Roberts court has not handled all such disputes that come before it with the same level of equanimity. Two recent cases stand out. One is Dunn v. Ray, which involved a Muslim prisoner on death row in Alabama. State policies allowed him to have a Christian chaplain present during his execution but not a cleric of his own faith. Lower courts thought that was a fairly clear example of religious discrimination and tried to stop the execution so his lawsuit could go forward. But the court’s five-justice conservative majority at the time overrode them on factually flawed grounds. The result was one of the most widely criticized rulings by the court in recent memory.
The other is Trump v. Hawaii. “Just a few terms ago, this court declined to apply heightened scrutiny to a presidential proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the proclamation as a ‘Muslim ban,’ originally conceived of as a ‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,’” Sotomayor wrote in her dissent last week. “If the president’s statements did not show ‘that the challenged restrictions violate the minimum requirement of neutrality to religion,’ it is hard to see how Governor Cuomo’s do.” To enforce a strict vision of the Free Exercise Clause for some faiths and not others is a recipe for moral and civic disaster.
Indeed, if there’s a throughline here, it’s the justices’ personal beliefs. As I have previously noted, Alito and his conservative colleagues’ disdain for public health officials appears to be animating their approach to the legal challenges in question. And as The Atlantic’s Ronald Brownstein has suggested, when it comes to religious freedom cases, some of the court’s conservatives appear guided by personal views on faith that are incongruous with not just the court’s precedents on LGBT rights but also majorities of Americans’ views.
What also unites Jacobson and Smith is a certain degree of judicial humility. Previous generations of jurists recognized that, in all but the most extreme cases, most of the questions and disputes at issue in those cases are better resolved by the other instruments of American governance. The justices are neither theologians nor epidemiologists; it’s for their benefit as much as everyone else’s to stand aside. That a majority of justices now think they have all the answers may be just as troubling as the answers themselves.