Don’t Read Too Much Into Supreme Court Religion Ruling

The Supreme Court’s 5-4 decision on 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, and it doesn’t signal much at all. As a technical matter, it’s close to a yawner. If it is to be taken 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 Governor 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 unsigned 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, even in red zones. Those essential businesses included grocery stores, banks, acupuncture facilities, campgrounds, garages and transportation facilities. And in orange zones, even nonessential businesses could do as they wished, and so had a lot more flexibility than houses of worship.

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 didn’t reject Gorsuch’s argument. Instead he made a narrow procedural point: It was not the right time for the court to intervene. His reasoning was that it wasn’t necessary for the court to act because Cuomo had loosened the restrictions after the case was filed, eliminating the numerical limits previously faced by houses of worship.

In a separate dissenting opinion, Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, agreed with that point. He added that the technical question before the court was whether to give a “preliminary injunction” blocking enforcement of the state’s order, or instead to wait for a full hearing where all the facts could be compiled. He also pointed to the need to give broad discretion to elected officials during a pandemic to make decisions when facing medical and scientific uncertainties.

If we take the court’s ruling on its own terms, it’s small potatoes. 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.

For officials who are seeking to control the pandemic, the court’s decision is also no big deal. Nothing in it would forbid stringent restrictions on churches and synagogues, so long as those restrictions are imposed on other, similar institutions as well. What’s required is neutrality.

For these reasons, 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 — and to their claims of discrimination and excessive intrusion by state and federal governments.

A clue here comes from a vigorous Nov. 12 speech to the Federalist Society by Alito, who said, “The pandemic has resulted in previously unimaginable restrictions on individual liberty.” But more important evidence comes from a series of decisions in which the justices have interpreted both the Constitution and the Religious Freedom Restoration Act of 1993 in ways favored by 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. The requirement of neutrality, not the ascendency of an emboldened conservative majority, is the real lesson of this week’s decision.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “Too Much Information” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2020 Bloomberg L.P.

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