Has Amy Coney Barrett’s arrival on the United States Supreme Court changed the court’s perspective on houses of worship and COVID-19 restrictions? Or, were the restrictions imposed by New York Gov. Andrew Cuomo simply more draconian than restrictions in California that just a few months ago were upheld by the high court?
These are but two of the viewpoints being expressed by religious liberty advocates in light of a midnight ruling from the Supreme Court on Thanksgiving Eve, Nov. 25. In a 5-4 opinion, the court sided with the Roman Catholic diocese of Brooklyn, N.Y., and a Jewish congregation and said the state’s governor may not restrict attendance at worship services as current public health policy requires.
The New York Times reported Cuomo as saying that the ruling has little practical effect because the restrictions cited already have been relaxed as positive COVID test rates have receded in those communities. Nevertheless, the reasoning behind the ruling will echo across the nation as states and municipalities continue to wrestle with how to reduce the spread of the deadly virus and balance religious liberty concerns at the same time.
Departure from previous rulings
On its face, the late-night ruling appears to contradict a May ruling from the court — also a 5-4 decision but with the late Justice Ruth Bader Ginsburg still alive and voting in the majority — that allowed California’s governor to restrict attendance at houses of worship in order to control the spread of coronavirus.
On its face, the late-night ruling appears to contradict a May ruling from the court.
That May ruling has been cited by the Supreme Court and lower courts as justification for allowing similar restrictions in other places. It also has been vehemently derided by a few prominent California churches — most notably Grace Community Church in Los Angeles, where John MacArthur is pastor. MacArthur has defied multiple court rulings against holding full-scale, in-person worship services, thus far without fine or imprisonment for acting against explicit government and court orders.
MacArthur and Grace Community Church are represented in their legal challenges by Jenna Ellis, a name now familiar to Americans nationwide because she is part of the legal team falsely claiming that Donald Trump actually won the 2020 presidential election but has been denied a second term due to massive — if undocumented — voter fraud.
Some observers look at the Nov. 25 ruling in the New York case and point out the one obvious change that has happened between May and November: the death of Ginsburg and the rapid Senate affirmation of Barrett to replace her. According to this reasoning, the New York ruling with a flipped 5-4 majority now favoring conservatives is a foretaste of what’s to come on many other rulings.
These observers see a dramatic shift in the court’s majority view about the very nature of religious liberty, with an emphasis on free exercise of religion at the expense of all other considerations, even public health in a pandemic. This has been the demand of religious conservatives for years, evidenced in other court cases asking, for example, whether a baker should be able to deny service to gay and lesbian couples because the baker objects to same-sex marriage.
Are New York restrictions too harsh?
While the shift in the court’s balance likely is, indeed, a reality for now, other observers see the New York case as not a perfect test of Barrett’s influence. The reason: The perceived unreasonableness of the New York restrictions.
The court’s majority opinion in the New York case states: “Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as ‘narrowly tailored.’ They are far more restrictive than any COVID–related regulations that have previously come before the court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.”
The New York restrictions also are more fluid and harder to anticipate because they are tied to a color scheme of threat levels that can change overnight. Therefore, a church’s plan to hold an in-person service made on Wednesday for the following Sunday could be interrupted on Saturday if the neighborhood threat shifts.
The previously upheld California restrictions, by contrast, are established and only change by further amended order of the governor or public health officials.
“There are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services.”
This seems to be a central line of reasoning in the court’s new majority opinion, which asserts: “There are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue.”
The New York restrictions have a flat limit on crowd size unrelated to the size of the venue. Other states, cities and counties have issued restrictions tied to a percentage of normal occupancy, so that a church or business that normally could accommodate 100 people would be allowed to accommodate 25 people or 50 people, depending on conditions.
The court’s majority opinion cited one of the plaintiffs, Congregation Agudath Israel of Kew Garden Hills, which normally can seat up to 400 in its worship space. “It is hard to believe that admitting more than 10 people to a … 400–seat synagogue would create a more serious health risk than the many other activities that the state allows.”
Are churches like businesses?
From a public health perspective, the likely more troubling part of the majority opinion is its comparison of houses of worship to businesses.
Critics of government-imposed restrictions on in-person worship often claim they are being singled out for persecution compared to other businesses, often citing businesses they dislike on moral grounds as examples. MacArthur and Grace Community Church — as well as Ellis representing them — repeatedly have pointed to Black Lives Matter outdoor protests, liquor stores and other objectional businesses as being treated better than churches.
There is a fundamental difference between the way churches and retail businesses operate.
Public health officials — and even many pastors — have countered that there is a fundamental difference between the way churches and retail businesses operate. At a retail store, 100 customers seldom would be found gathered in the same small space but instead would be dispersed around the store, thereby maintaining social distancing and creating less of a threat of viral spread. By contrast, 100 people attending a worship service typically would be gathered in one space and not similarly distanced. A further contrast is that shoppers come and go at various times from retail stores but worshipers arrive at the same time, stay the same amount of time and leave at the same time.
Nevertheless, the Supreme Court’s majority directly compared houses of worship to retail establishments.
“In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as ‘essential’ may admit as many people as they wish. And 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. … The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.”
In one of three dissenting opinions written by various combinations of justices, Justice Sonia Sotomayor took on this issue directly: “Unlike religious services … 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. 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.”
The citation of this idea by the court majority plays into an argument made by Congregation Agudath Israel, which believes the governor “specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included.”
The governor and his public health officials contend the Orthodox Jewish communities — largely concentrated in Brooklyn — have become hot spots for the spread of COVID because of not taking the threat seriously. In the spring, Mayor Bill de Blasio personally helped break up a large unauthorized funeral for a rabbi in Brooklyn.
The New York Times has documented the war of words between the mayor and Orthodox Jewish leaders, who also tend to be politically conservative and have echoed the talking points of President Trump, who has denied the severity of the virus, even after contracting it himself.
Just as with MacArthur and Grace Community Church in Los Angeles, the New York Orthodox Jewish leaders have objected to Black Lives Matter outdoor protests as being treated more favorably than their congregations and their desire to meet indoors.
Religious expression versus love for neighbor
By all accounts, the court’s new majority has prioritized freedom of religious expression above all other concerns.
By all accounts, the court’s new majority has prioritized freedom of religious expression above all other concerns.
The majority opinion explains: “Members of this court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.”
Ironically, The New Times published an op-ed by Pope Francis Thanksgiving Day — a piece that clearly had to have been written before the court’s ruling was known because it was online less than five hours later — that some saw as a rebuttal to the court majority and to the position taken by the Catholic Diocese of Brooklyn.
In the piece, titled “A Crisis Reveals What Is in Our Hearts,” Francis wrote: “With some exceptions, governments have made great efforts to put the well-being of their people first, acting decisively to protect health and to save lives. The exceptions have been some governments that shrugged off the painful evidence of mounting deaths, with inevitable, grievous consequences. But most governments acted responsibly, imposing strict measures to contain the outbreak. Yet some groups protested, refusing to keep their distance, marching against travel restrictions — as if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom! Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate.”
Elsewhere, religious leaders and political pundits saw various lessons emerging from the ruling.
From California, MacArthur tweeted: “It’s divine providence at work as the Lord uses the death of Ruth Bader Ginsberg, the hubris of @NYGovCuomo, the determination of @realDonaldTrump, and the convictions of Justice Barrett to protect the freedom of his church.”
Ellis, the Trump and MacArthur attorney, took a break from her lengthy string of tweets about how the election was “stolen” from Trump to comment on the court ruling: “Supreme Court rules to protect houses of worship and religious liberty!!! 5-4 opinion. This is a HUGE WIN for the Constitution and our fundamental rights!”
Russell Moore, head of the Southern Baptist Convention’s Ethics & Religious Liberty Commission, kept notably silent on MacArthur’s case in California — much to the chagrin of MacArthur supporters — but immediately commented on the New York ruling in a Thanksgiving Day tweet: “I’m thankful the court weighed in on this case. Officials must treat churches and houses of worship the same as other similar activities as we all partner together to fight this awful pandemic.”
On the other side, Joe Lockhart, a CNN political analyst and former official in the Clinton White House, tweeted: “Anyone who supports the middle of the night Supreme Court ruling is not really pro-life.”
Amanda Tyler, executive director of Baptist Joint Committee for Religious Liberty, tweeted: “Lots going on in 33 pages of opinions in this latest #SCOTUS religious liberty case. Justice Barrett didn’t write, but her vote explains the outcome.”
James K.A. Smith, professor of philosophy at Calvin University and editor in chief of Image Journal, tweeted a counter to the court ruling: “Pls don’t forget: there are thousands of congregations that don’t need to be *ordered* not to gather, for whom this SCOTUS decision means nothing. They know loving the most vulnerable means not gathering for a time — an asceticism of communal, collective love.”
Rachel Laser, president and CEO of Americans United for Separation of Church and State, issued a statement condemning the Supreme Court ruling, saying it “misuses religious freedom and endangers the public health of everyone in New York. With coronavirus cases spiking across the country, we should be heeding the advice of public health experts who recommend limiting large gatherings. COVID-19 doesn’t discriminate between religious and secular gatherings; on numerous occasions, infections at houses of worship have led to major outbreaks in surrounding communities.”
And she echoed Smith’s tweet about the difference between what’s permissible and what’s wise: “While the court’s order gives freer rein for larger religious gatherings to occur, that does not mean that they must or should occur. We urge houses of worship and religious organizations to consider the health and safety of the entire community and continue to follow the advice of health experts.”