Religious Liberty Ruling Risks Public Health

             Supreme Court justices have taken appropriate steps to safeguard their health and the health of the Court’s employees during the coronavirus pandemic by suspending in-person oral arguments and conferences and conducting business instead remotely, by telephone, at a safe distance from the risk of COVID-19 spread.

            The Court cast caution aside last month, however, when a 5-4 majority overturned orders issued by New York’s governor Andrew Cuomo aimed at stemming the spread of the deadly coronavirus that, to date, has claimed the lives of more than 34,000 of Cuomo’s New York constituents, including more than 24,000 in New York City alone.

            The Court’s unsigned, seven-page opinion in Roman Catholic Archdiocese of Brooklyn v. Cuomo found that Cuomo had violated free exercise rights of the archdiocese and the Orthodox Jewish organization Agudath Israel by limiting in-person attendance at worship services to as few as 10 persons in some Brooklyn neighborhoods or up to 25 persons in other neighborhoods with fewer numbers of COVID-19 cases.

            The archdiocese and Agudath Israel rushed to federal courts with separate lawsuits challenging Cuomo’s orders within a week after the Democratic governor signed the first of the orders on October 6. Two federal district court judges declined to block the orders. On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit similarly declined to enjoin enforcement of Cuomo’s order; a Trump-appointed judge, Michael Park, dissented.

            Cuomo has distinguished himself in news conferences broadcast live on cable news channels as an official, nonpartisan voice of reason in dealing with the coronavirus pandemic in contrast to the rambling, science-free presentations by President Trump and the nonscientist he selected the administration’s coronavirus task force, Vice President Mike Pence. Even so, Cuomo’s orders invited legal challenges by capping attendance at worship services while imposing no crowd limits at all on some commercial facilities deemed under the orders to be “essential businesses.”

            The limits on worship services reflected the accepted view among medical and scientific experts that the risk of spreading the virus is especially high when significant numbers of people gather together in close proximity to each other for an extended period of time – spewing virus-carrying droplets by singing, for example, and talking. The Court’s five-justice majority took no note of this underlying science, but the three liberal dissenters emphasized the point in separate opinions written by Breyer and Sotomayor.

            In her opinion, Sotomayor stressed New York’s conclusion that worship services pose a greater risk of spreading the virus than the typical coming and going of customers in big-box stores, for example. She noted that Gorsuch, who explained his views of the issue in a lengthy and sometimes rhetorical concurring opinion, “does not even try to square his examples with the conditions that 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.”

            At the Supreme Court, Cuomo faced a likely setback from the get-go given the Roberts Court’s extraordinary solicitude for religious liberty claims in a series of decisions in the 2019 term even before the appointment of the charismatic Catholic justice, Amy Coney Barrett. Cuomo had also created a legal pitfall in advance of issuing the orders by criticizing New York’s orthodox Jewish communities for openly defying public health guidance to avoid crowded gatherings.

            The unsigned opinion joined by the conservative-justice majority held Cuomo’s orders subject to strict scrutiny because they singled out religious services for unfavorable treatment. The orders, the Court found, were not “narrowly tailored” as required under strict scrutiny because Cuomo could have tied the attendance limits to some percentage of the sanctuaries’ capacity.

            One Jewish commentator correctly faulted the ultra Orthodox for continuing to engage in “large-scale gatherings for study, prayer, weddings, and funerals that can and apparently did serve as super-spreader events.” J. J. Goldberg, editor emeritus of the Jewish Daily Forward, noted in a blog post that the neighborhoods designated under Cuomo’s orders as “red zones” subject to the most stringent limits on worship services included neighborhoods with above-normal rates of positive tests for the virus.

            It is a universally accepted principle that the First Amendment’s protection for freedom of speech does not permit someone to shout fire in a crowded theater because of the inevitable risk of death and injury. This corollary ought to be universally accepted as well: “Religious Freedom Is Not a Right to Risk People’s Lives,” as Americans United for Separation of Church and State has posted on its home page. In an accompanying blog post, senior adviser Rob Boston warned that the Court’s decision in the New York case “will likely cause people to get sick and die.”

            The Court decided the New York case summarily, without oral argument or full briefing, but has now designated the decision as precedent for lower courts to follow in dealing with the flurry of similar cases around the country. In two previous cases, the Court had declined to override similar statewide orders with limits on attendance at worship services. In a new California case, however, the Court set aside a lower court decision upholding Gov. Gavin Newsom’s executive order and directed the lower court to reconsider the case in the light of the ruling in the New York case.

        Clearly, the justices were signaling that Chief Justice Roberts’ concurring opinion in an earlier decision that counseled deference to states’ efforts to limit the spread of the virus is now inoperative. The political branches have made a mess of dealing with the pandemic ever since Trump’s deliberate downplaying of the virus in the early months, and now the Supreme Court appears intent on making things even worse. Hippocrates comes to mind: “First, do no harm.”