As a former attorney and ardent follower of issues and trends at the US Supreme Court, this author knows that the court has a remarkable ability to center itself over time. The outcome of individual cases also can be difficult to predict, for justices often form alliances that to us seem unusual, sometimes resulting in suprising outcomes.
Those disclaimers out of the way, the Court’s recent 5-4 ruling, in which it sided with religious groups in striking down New York’s anti-COVID restrictions as they apply to some houses of worship is predictable. It’s also downright dumb and inconsistent with the long-standing precedent.
In its unsigned majority opinion, released almost at midnight on Thanksgiving eve, the Court sided with the Roman Catholic Diocese of Brooklyn and a Jewish temple in striking down headcount restrictions imposed on houses of worship in so-called red zones — areas with heightened transmission of the COVID virus — holding tha the restrictions 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
Prior such cases, which came to the court prior to the death of Ruth Bader Ginsburg, upheld similar restrictions in a 5-4 split, with Chief Justice Roberts joining the liberal justices in the ruling.
Not surprisingly, newly minted justice Amy Coney Barrett joined the conservative justices in the recent decision, tipping the court to a 5-4 split against its liberal wing. Thus, we see first-hand the results of her appointment to the Court.
Also present were signs of considerable tension between the justices, with six opinions being issued in the late-night ruling. This typically happens when individual justices feel strongly about the specifics of a case, but cannot find support to incorporate their views into the majority opinion. In this case, the opinions are marked by terse language, at variance with the Court’s tradition of respectful disagreement.
The problem with the recent decision, from this author’s perspective, is that it ignores the Court’s long-standing precedent, which balances constitutional guarantees against the need to ensure public safety. Thus, none of our freedoms, cherished as they are, are absolute.
The classic illustration is the First Amendment’s guarantee of free speech. One of the Court’s most jealously guarded freedoms, even this falls before the need for public safety.
Thus, we get the famous example of shouting “fire!” in a crowded theater, which the Court has said time and again falls squarely outside the protection of the First Amendment.
As a result, the Court historically has been very willing to defer to legislatures and the other branches of government when it comes to public safety.
In the present case, we know that religious worship, which often involves close physical proximity, singing, and other high-risk activities, is considered a potential super-spreader event. This is evinced by multiple outbreaks at churches in the US, and elsewhere in the world. (Recall that Patient Zero in the DC area was an Episcopal priest — one who had been very careful to adhere to social distancing during church services.)
Moreover, the aging demographics of most mainstream faiths — no doubt including the Catholic Diocese of Brooklyn — places attendees at heightened risk of death due to CIOVID infection.
This paradigm, in which the Court historically defers to local elected leaders and their decisions relating to health and safety, was reflected in Roberts’ opinion, which states:
The Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States
Roberts went on to note the surging infection rate and death count in the United States.
Thus, we have a Court that abandoned two centuries of its own precedent in order to strike down legitimate health and safety restrictions imposed by local elected officials.
The other issue with the majority opinion is, in this author’s view, the Court’s decision to replace scientific reality with its own judgment.
Over the years, one of the criticisms of the Court, even among its own justices, is that it often struggles with intellectual property, scientific, and other “boutique” issues. This occurs because, in many cases, the Court lacks an effective mechanism to understand and parse issues of this sort.
In the present case, the Court looked first to the First Amendment, while sidestepping the science behind the New York restrictions. And while the Court correctly noted that some “essential businesses” such as acupressure seem counterintuitive, neither did it address the fact that these businesses are generally not considered to be superspreaders.
Thus, there’s a gaping hole in the logic of the majority opinion, even as the Court becomes the very thing often criticized by conservatives—an activist court.
OrganizatIonal Ethics Loom Large
But most importantly, we see behind this decision a profound moral failure on the part of the plaintiffs.
While it is important to recognize the importance to Catholics of the Mass and the belief that it is the literal sacrifice of Christ, the reality is that in-person services place others at risk.
Surely if kindness and compassion mean anything, or Jesus died on the cross for any reason besides the surliness of his enemies, it is incumbent upon us to do all we can to keep our neighbors safe.
Moreover, this author believes that Jesus of Nazareth would have been the first to show compassion for those at risk, and advise them to render unto Caesar that which is Caesar’s.
In other words, God is not a narcissist who requires that we place ourselves and others at risk in order to worship him. Indeed, we worship God when we keep our brother and sister safe.
The Book of Common Prayer beautifully captures this notion in its quote from Luke:
Hear what our Lord Jesus Christ saith:
Thou shalt love the Lord thy God with all thy heart, and with
all thy soul, and with all thy mind. This is the first and great
commandment. And the second is like unto it: Thou shalt
love thy neighbor as thyself. On these two commandments
hang all the Law and the Prophets.
In Judaism, a similar law pertains, with the notion of pikuach nefesh — the importance of saving the life of another — overcoming almost every other religious law. When there is doubt as the whether a life indeed is in danger, Jewish law commands that doubt be resolved in favor of acting to protect life.
Thus, we have a Supreme Court that has failed its citizens by wading into an issue with which it need not have dealt, for it could have declined certiorari.
And we have religious leaders who have preferred their organizations’ perceived interests over the love of God and neighbor.
Surely, the Court’s decision is a recipe for unnecessary human suffering and an endorsement of bad behavior by trusted religious leaders.