Cuomo, COVID and the "Deadly Game"

In the last article, we saw the Court determined public health considerations cannot run roughshod over religious liberty concerns. Justice Gorsuch, who seemed particularly outraged, quipped the Constitution does not take a sabbatical during a pandemic. However, Justices Breyer, Sotomayor and Kagan disagree. They wish to continue to defer to Governors and public health orders.

Thus, according to experts, the risk of transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces. The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.

Breyer dissent, p. 4.

I suspect (but, of course, cannot prove) these Justices simply do not appreciate the importance of religious worship and are therefore incapable of adequately protecting it. I’m unmoved by stories about how Joe Biden (et al) have “deep Christian faith.” The Christian faith isn’t play-dough to be molded and appropriated by the owner. It’s objective. It has content. It has meaning. The ideologies of Joe Biden and Kamala Harris (and, for that matter, President Trump) largely do not comport with the Christian faith and message.

The dissenting justices continue:

We have previously recognized that courts must grant elected officials “broad” discretion when they “undertake to act in areas fraught with medical and scientific uncertainties.” That is because the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.”

Breyer dissent, p. 5.

Sotomayor, in her own dissent, writes:

I see no justification for the Court’s change of heart, and I fear that granting applications such as the one filed by the Roman Catholic Diocese of Brooklyn (Diocese) will only exacerbate the Nation’s suffering

Sotomayor dissent, p. 1.

To her, the nature of religious activities make it more dangerous.

But 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

Ibid, p. 2.

Sotomayor epitomizes this deference to public health authorities. No sane person would deny these individuals have expertise. The dispute is over whether public health concerns can trump religious freedom (pun intended), and if so for how long. Can, as Gorsuch quipped, the Constitution actually take a sabbatical? Sotomayor apparently believes it can:

Unlike religious services, which “have every one of th[ose] risk factors,” 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. Id., at 7 (“Epidemiologists and physicians generally agree that religious services are among the riskiest activities”). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.

Sotomayor dissent, p. 3.

I wonder, then, why States do not issue edicts forbidding potlucks at Baptist churches because, according to the Centers for Disease Control and Prevention, 655,381 Americans died from heart disease in 2018. One could marshal precisely the same public interest arguments for abolishing potlucks and communal meals at all houses of worship. Of course, that’s absurd. Why is COVID different, given the COVID death rate in 2020 (262,158) is only approximately 40% that of heart disease?

I can only see this continued judicial deference to the State as a sophisticated extension of the “stay safe at all costs” mindset that is so common, today. Sotomayor concludes thus:

Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives

Sotomayor dissent, p. 5.

Predictably, Gov. Cuomo dismissed this injunction as a partisan political move by SCOTUS. However, the decision signals how the Court will likely rule on similar cases that come its way, and lower courts may well use these same arguments to rule in favor of houses of worship.

Legal experts said that despite the governor’s assertion that the decision was limited to parishes and other houses of worship in Brooklyn, the court’s ruling could be used to challenge and overturn other restrictions elsewhere. “The decision is applicable to people in similar situations,” said Norman Siegel, a constitutional lawyer and former leader of the New York Civil Liberties Union. “It’s applicable to any synagogue, any church, to any mosque, to any religious setting.”

Jesse McKinley and Liam Stack, “Cuomo Attacks Supreme Court’s Emboldened Majority Over Virus Ruling,” in New York Times (26 November 2020). Retrieved from https://nyti.ms/378Wmwp.

In its amicus brief to SCOTUS, the Southern Baptist Ethics and Religious Liberty Commission asked for clear guidance on how lower courts should weigh public interest and the free exercise of religion:

This Court’s guidance is needed, and, in its absence, the lower courts are left grasping for whatever they can find. Indeed, a search of Westlaw reveals that the concurring opinion in South Bay (declining to grant the requested injunction) has been cited 118 times in the past five-and-a-half months, leading to a hodge-podge of results across the United States and uncertainty as to what standard the lower courts should apply … It is time for the Court to weigh in and provide clear rules for lower courts struggling to resolve these questions during the COVID-19 pandemic.

ERLC amicus brief, p. 4. Retrieved from https://bit.ly/39gWDjp.

Well, SCOTUS did just that. Whatever else they may feel about his fitness for office, all people of faith owe President Trump a debt of gratitude for appointing Justice Barrett, a convictional and faithful Roman Catholic, to the Court. This decision is a wonderful victory for religious liberty, and I suspect 2021 will see many of these executive orders struck down State by State.