The Supreme Court handed down its decision in Roman Catholic Diocese of Brooklyn v. Cuomo (consolidated with Agudath Israel v. Cuomo) on the brink of Thanksgiving Day. That is a traditional time for government bodies to announce actions that they would rather no one attended to. Obviously, that was not the Court’s expectation or intent. If I may add to the cacophony of praise, condemnation and analysis, here are the thoughts that came to my mind after reading the Justices’ opinions. There are six of them: an unsigned per curiam majority opinion, two concurring opinions (by Justices Gorsuch and Kavanaugh), a wishy-washy dissent by Chief Justice Roberts, and more vigorous ones by Justices Breyer and Sotomayor. It’s not obvious why all six were necessary. This may be an instance of the old lament, “I wrote a long letter, because I didn’t have time to write a short one.”
1. The nub of the disagreement between the majority and the full-throated dissenters is their different views of the role of religion in life. To the majority, the ability to practice one’s faith is by definition “essential” – not an absolute that overrides all other considerations but to be limited only under exigent circumstances. “At a minimum, [the First] Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available.” (Gorsuch, J., concurring)
The dissenters (other than the Chief Justice, who conceded that “it may well be that such restrictions violate the Free Exercise Clause” but opined that a decision could be put off till another day) took a more relaxed view: that “state officials seeking to control the spread of COVID-19 . . . may restrict attendance at houses of worship so long as comparable secular institutions face restrictions that are at least equally as strict”. In this instance, “comparable secular institutions” included “lectures, concerts, movie showings, spectator sports, and theatrical performances”. (Sotomayor, J., dissenting) Missing is the concept that what goes on inside “houses of worship” is of any greater significance, or entitled to greater legal protection, than a screening of the latest Star Wars sequel.
Just how little significance the dissenters attach to religious practice is shown by their casual conclusion that the restrictions they would uphold – no more than ten or 25 people present at services, depending on Governor Cuomo’s classification of the edifice’s neighborhood as “red” or “orange” – are justified by “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”. (Sotomayor)
Assuming for the sake of argument that assemblages of eleven or 26 people in venues that can hold hundreds constitute “large groups of people gathering . . . in close proximity”, perhaps New York’s restrictions are rational for “non-essential” secular institutions. The position of Justices Breyer, Sotomayor and Kagan – that no more justification is needed before imposing them on churches and synagogues – assumes that worship is also “non-essential” and that restrictions on gatherings for worship are subject to only the lightest degree of judicial scrutiny: that they not be irrational.
The dissenters’ argument encapsulates the rapid descent of the Free Exercise Clause in the progressive hierarchy of rights. Less than a decade ago, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a unanimous Supreme Court (on which all of the current dissenters sat) held that a parochial school could, without regard to the Americans with Disabilities Act, discharge a teacher whom it classified as a minister. The Brooklyn Diocese and Agudath Israel presented at least as strong a case: Governor Cuomo’s decrees effectively prohibit organized worship by most Christians and Jews. Indeed, Orthodox synagogues in red zones cannot admit any women or any children under age 13 to their services, because the ten adult males needed to comprise a minyan take up all the available slots. Yet at least three Justices are untroubled. Religious bodies may be able to choose their leaders without state interference, but the state can keep their followers away for reasons that meet the least demanding Constitutional standard.
2. The exchange of views between Justice Gorsuch and Chief Justice Roberts opens a window on the untoward side effects of working remotely. The details will interest only lawyers (and won’t interest most lawyers very much). What is noteworthy is the waspish tone, which seems to evidence a bit more than ordinary lawyerly disagreement. Justice Gorsuch criticizes at length a single citation in one of the Chief Justice’s past opinions, arguing (quite correctly, I believe) that it was inapposite. The Chief Justice complains in response that the citation was merely offered in support of an uncontroversial proposition. (Neither mentions the other two citations in the criticized opinion, both of which are even further off point.) One can’t help but think that these passages would have either gone unwritten or have been differently phrased if the Justices had conferred in person rather than video chat. Zoom is a poor substitute for human contact.
3. One of the majority’s argument against the Cuomo Decrees was that, while religious gatherings were capped at ten or 25 attendees, “essential” businesses in red zones and both “essential” and many “non-essential” businesses in yellow zones “may decide for themselves how many persons to admit”.
Aside from its importance to the legal issues in the case, that distinction raises a policy question. The aim of locking down economic activity is to inhibit the spread of coronavirus through human contact. But how can that strategy be effective if, as the Court observes, “the list of ‘essential’ businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities”?
One of the few COVID-19 facts about which everyone concurs is that the novel coronavirus is highly contagious and can spread rapidly from a handful of individuals to millions. That is exactly what happened early this year. If every American lived alone in a pod for two weeks, perhaps the virus would die out, but it’s hard to see how it won’t survive and (from its own point of view) prosper if given the opportunity to spread among “essential” workers and then into the “non-essential” population. Are we not, at tremendous cost, bailing water with sieves?