Covid Order Shows Barrett Fortifies Court on Religious Rights

(Bloomberg Law) -- The Supreme Court’s sharply-divided ruling blocking New York’s Covid-19 restrictions on in-person worship has bolstered the prospects of already-successful religious legal advocates while making their adversaries fear for their future at the high court.

In its most significant public action since Justice Amy Coney Barrett replaced the late Ruth Bader Ginsburg, the court late on Wednesday night signaled it will side with religion claims not only in the Covid-context but in other religious areas, too.

“In the broader context, what this signals is that we have a court that continues to be very protective of religious liberty, and also we have a court that is looking really carefully at whether government is acting in an even-handed way when it comes to how it is regulating religious exercise compared to other sorts of comparable secular conduct,” said Notre Dame law school professor Stephanie Barclay.

Barclay filed a brief on behalf of the Muslim Public Affairs Council and others in support of Orthodox Jewish religious groups that challenged New York’s restrictions.

“The case is not only important for all of the Covid litigation that’s been going on for many months in this country, but it shows an important principle, and that is, regardless of what type of regulations are at issue, we have to make sure that we don’t treat religious people and religious organizations as second-class citizens,” said David Cortman of the Alliance Defending Freedom, which litigates religious liberty claims.

Cortman said the opinion gives him added confidence that he’ll prevail in a case pending at the high court challenging church restrictions in Nevada. That Nevada case was previously at the court before the Barrett-for-Ginsburg switch, when the justices aligned 5-4 in favor of those restrictions, with Chief Justice John Roberts in the majority along with the then-four Democratic appointees.

Justice Samuel Alito, one of the four dissenters, criticized the Nevada restrictions in a recent speech to the Federalist Society. Now the case is pending before the court again, where the newly-constituted court is likely to side with the church.

But while Wednesday’s 5-4 opinion in the New York case boosted the confidence of religious liberty advocates, it sparked dread in their legal opponents, as the justices inevitably confront an array of clashes in the months and years ahead between religious rights and others, like LGTBQ rights. The court earlier this month heard argument in Fulton v. Philadelphia, in which Catholic Social Services says it shouldn’t have to work with same-sex couples seeking to foster children.

Alex Luchenitser, associate legal director at Americans United for Separation of Church and State, said the New York ruling seems to increase the likelihood that the court will rule for the religion side in Fulton.

More broadly, Luchenitser said the New York case “is a very bad sign for the future of separation between religion and government and for the future of true religious freedom.” He said it “so far confirms our concern that Justice Barrett would be part of a five-justice ultra-conservative majority with Justices Alito, Thomas, Kavanaugh, and Gorsuch.”

In a mirror image of the Nevada dispute, Roberts dissented on Wednesday night from the unsigned majority opinion, as did the court’s remaining Democratic appointees after Ginsburg’s death: Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

The New York case dealt with an executive order issued by Democratic Gov. Andrew Cuomo that, according to the majority opinion, “imposes very severe restrictions on attendance at religious services,” in areas labeled “red” and “orange” zones.

Red zones have 10-person limits and orange zones have 25-person limits, with areas subject to those restrictions corresponding to the severity in outbreak of the deadly pandemic that has claimed the lives of over 250,000 Americans.

New York’s regulations “single out houses of worship for especially harsh treatment,” the majority said. Justice Neil Gorsuch in a concurring opinion lamented what he said was more favorable government treatment toward liquor stores and bicycle repair shops than houses of worship.

Some of the dissenters questioned that premise. “Unlike religious services,” Sotomayor said in a dissent joined by Kagan, “bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time.”

Lawyers who argue on the other side of religious liberty claims are concerned that this is the dissenting view.

Geoffrey Blackwell, litigation counsel at American Atheists, said Wednesday’s opinion was the latest in what he called a troubling trend of the court disregarding facts in religion cases.

Lambda Legal’s Jennifer Pizer agreed. “That deploying of selective facts,” she said, “is something to give us real concern. To give everybody real concern.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com

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