"Though religious gatherings face greater restrictions than less risky activities like shopping, they are actually treated more favorably than comparably risky secular activities, such as public lectures, concerts and theatrical performances — as the trial judge in the Roman Catholic Diocese case observed. For the Supreme Court’s new and extremely conservative majority, it seems, failure to sufficiently discriminate in favor of religion counts as discrimination against religion."
America may be back, as Joe Biden says, but at the Supreme Court, with its extremely conservative new majority, America is increasingly unrecognizable.
Balancing public health against the right to free exercise of religion poses a difficult challenge amid the COVID-19 pandemic. Accordingly, when cases from California and Nevada reached the Supreme Court earlier this year, the justices deferred to the judgment of their governors, who are, after all, accountable to the people.
But those cases were decided by narrow 5-4 margins before Justice Ruth Bader Ginsburg died in September. The court changed its tune late Wednesday night, when her replacement — Amy Coney Barrett — and the four earlier dissenters formed a new 5-4 conservative majority that invalidated restrictions on worship services in hot zones designated by New York Gov. Andrew Cuomo.
The ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, brought by Catholic and Orthodox Jewish congregations, was especially notable because it was unnecessary. As Chief Justice John Roberts explained in his dissent, by the time the court ruled, the New York houses of worship were no longer “subject to any fixed numerical restrictions.”
The opinion, then, did nothing more than admonish New York to stop doing something it had already stopped doing. Even if the case wasn’t technically moot, there was no reason for the highest court in the land to intervene, without an oral argument or deliberation, to grant extraordinary relief.
The Roman Catholic Diocese ruling is also far-reaching in its substance. The unsigned majority opinion decries what it deems discrimination against religion because worship services were subject to capacity limits while some essential business were not. Likewise, Justice Neil Gorsuch complains in a concurrence that under some circumstances, New Yorkers in a hot zone were permitted to crowd into a liquor store or a bike shop but not a church, synagogue or mosque. Justice Brett Kavanaugh registers the same complaint about grocery stores and pet shops.
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