December 4, 2020
As America lurches from public health crisis to economic crisis to electoral crisis and back around again, it is comforting to know that some aspects of public life will not change. At an unlikely time – just before midnight on the day before Thanksgiving – the U.S. Supreme Court issued a groundbreaking religious freedom decision illustrating just that.
In a twist of timing, the attorneys for one group of plaintiffs in the case – the Becket Fund for Religious Liberty – had just released its second Religious Freedom Index a few days earlier. The index reports on survey data about Americans’ views on religious freedom.
The suit consolidated two cases. The first was brought by Agudath Israel, an Orthodox Jewish organization. New York Gov. Andrew Cuomo had singled out Jewish synagogues in public statements such as: “We’re now having issues in the Orthodox Jewish community in New York, where because of their religious practices, etc., we’re seeing a spread” of COVID. As a result, Agudath Israel claimed “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” in extremely restrictive regulations (limits on religious services of 10 worshippers in red zones and 25 in orange). As Becket noted, “These zones heavily restricted worship, closed schools, and prevented Jewish families from celebrating holidays while mere blocks away, schools were open and restaurants were serving customers.”
The second suit was brought by the Catholic Diocese of Brooklyn. It also objected to the severe limitations on churches, noting that in red zones “all ‘essential’ businesses—a broad category that includes everything from grocery stores to pet shops to accounting and payroll offices” have no capacity limitations while in orange zones “almost all commercial enterprises” can stay open “without capacity limitations.”
The U.S. Court of Appeals for the Second Circuit declined to put a hold on the restrictions while these suits were pending, so the religious groups asked the Supreme Court to intervene on an emergency basis. The court agreed and issued its decision at the very end of the day on Nov. 25.
The court agreed with the religious groups in an unsigned opinion representing the consensus of five justices. The decision includes some striking illustrations of the findings from the Religious Freedom Index.
Equal treatment of religious groups
For example, “a majority of respondents said that houses of worship should be treated with at least the same priority as reopening businesses.” This theme of equal treatment of religious exercise was a major consideration in the court’s opinion.
The majority relied on the fact that Agudath Israel and the Diocese of Brooklyn “have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.” The majority found that the disparate treatment of religious groups violated the Constitution. It held: “Not only is there no evidence that the applicants have contributed to the spread of COVID–19 but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services.”
Justice Neil Gorsuch wrote separately in support of the majority’s ruling. His strongly worded opinion began: “Government is not free to disregard the First Amendment in times of crisis. At a minimum, that 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.”
In an amusing passage, Gorsuch referenced the governor’s order:
the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
He concludes that designating some businesses as essential while saying “traditional religious exercises are not … is exactly the kind of discrimination the First Amendment forbids.”
Role of courts in religious freedom protections
Another finding of the Religious Freedom Index survey was that respondents “were more likely to say the courts, rather than the president, Congress, state government or other government bodies, did the best job of protecting religious liberty.”
This was also a theme in the court’s decision. Implicitly, the case itself was an assessment of the governor’s treatment of religious freedom. Gorsuch concluded his opinion: “It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
The theme of the court’s role was central to the dissenting opinions, which were centered on the idea that the court should defer to the legislature.
Justice Brett Kavanaugh responded to the dissenters’ concern that the court’s order was premature: “[I]ssuing the injunctions now rather than a few days from now not only will ensure that the applicants’ constitutional rights are protected, but also will provide some needed clarity for the State and religious organizations.”
For instance, Justice Stephen Breyer’s dissent suggested the injunction was premature but also suggested that public officials need broad latitude in a public health crisis.
Justice Sonia Sotomayor’s dissent stressed the idea of deference to public officials. While she agreed with the majority that “States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one,” she felt that principle was not implicated: “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.”
The public’s sense that courts are more attuned to religious freedom concerns certainly seems to have been vindicated by this decision. In addition, the Supreme Court shared the majority of the public’s concern that religious groups be treated the same as other enterprises.
The latter point could be the focus of a shift in the former. In other words, the Supreme Court’s efforts to ensure equal treatment of religious exercise could be adopted by other government entities and thus allow Congress (which is currently considered to be least protective of religious freedom) and the executive to begin playing a more constructive role in protecting the expression of deeply personal beliefs, both religious and secular.
If they do, the foundation that religious freedom offers can become part of the bulwark of stability that Americans need during of period of often chaotic change.
Being truly educated means understanding one of the most powerful forces in the world: religion. Being a truly educated American means understanding the importance of protecting that force: freedom of religion.
The Washington model illustrates that by recognizing potential conflicts and enacting appropriate accommodations, schools can do their work without unnecessarily infringing the religious exercise of students. It is a model other states, including Utah, should follow.
Caring for children and families in vulnerable situations is an undoubted public priority, and everyone willing to provide good-faith help is needed.