The Supreme Court’s Decision on COVID and Religion

On Wednesday, the Supreme Court issued an injunction prohibiting New York from enforcing rules limiting the number of people who can gather in a religious place of worship. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ____ (Nov. 25, 2020) (available at Many people view this decision as a highly partisan decision — I’ve seen numerous claims that it was unprincipled, based on a belief that religion in general or Catholicism in particular is more important than public safety, a harbinger of terrible jurisprudence in the post-Ginsburg era of the Court, and generally bad. Most of those claims don’t seem to have a lot of familiarity with the decision itself. While I disagree with the Republican majority of the Supreme Court about many things, I’m inclined to agree with the majority per curiam opinion’s decision. I thought it would be worthwhile to talk about the decision.

To my eye, this is a close and difficult case to resolve. I want to touch on four separate points. First, on the substantive legal issues, both the majority and the dissents agree on the basic legal standard — they just disagree on a difficult question of how to apply that legal standard to this case. Second, this case has thorny procedural issues related to mootness, whether there’s a live case or controversy, and the problem of changing government rules that could create claims that are capable of repetition yet evading review. The Court majority adopts the more typically liberal position on these issues, while the dissents advocate for a more constrained role for the Courts more typically associated with conservative justices. Third, while I lean towards agreeing with the majority, I thought Justice Gorsuch embarrassed himself with his histrionic concurrence, in which he treated honest disagreements about difficult questions as representing a desire to “cut[] the Constitution loose during a pandemic.” He does himself, his allies on the Court, and people who want to perceive the Court as applying law rather than bare-knuckled politics no favors by seeking to delegitimize those who disagree with him. Finally, this decision points to a potential problem in Free Exercise jurisprudence, where religious organizations receive solicitous protection of their rights precisely when they are politically popular, influential, and unlikely to be truly oppressed by the government, with the minority religions that have little influence and whose basic tenets offend the majority deeply receive little protection. That’s an outcome that’s precisely backwards, and we should consider whether the courts can and should work to reduce that incongruity.

A Difficult Substantive Issue: What Businesses and Activities are Relevantly Similar to a Religious Gathering?

Contrary to popular understanding (and contrary to Justice Gorsuch’s ill-advised hyperbole), both the majority and the dissents in Roman Catholic Diocese of Brooklyn agree on the basic legal framework that applies. They all agree that state governments have extensive power to adopt rules about conduct during a pandemic to prevent the spread of disease and to preserve public health — including rules that, without the presence of a pandemic, would violate the Constitution. They all agree that those rules can be applied to religious organizations if and only if they are rules of general applicability, applied to all organizations evenly and without disfavoring religious organizations relative to secular organizations. The question, then, is whether the specific rules that New York adopted treat religious organizations worse than other organizations. That, in turn, depends on which other gatherings are appropriately compared to religious gatherings.

The majority compares the rules that apply to religious gatherings to the rules that apply to “essential businesses” in New York and concludes that the rules are more restrictive for religious gatherings. Under New York’s rules, in “red zones,” houses of worship are limited to gatherings of no more than 10, while essential businesses — a category that the Court majority views as very broad, including garages, bicycle repair shops, liquor stores, a broad category of manufacturing facilities, and all transportation facilities — do not have a limit on number of people allowed in at one time. In “orange zones,” houses of worship can permit 25 people at a time, whereas other businesses have no special maximum applied. So the majority concludes that religious gatherings have been singled out for harsher treatment, and therefore strict scrutiny applies — the law must be narrowly tailored to support a compelling governmental interest. While the Court acknowledges that “stemming the spread of COVID-19 is unquestionably a compelling interest,” the majority concludes that the rules at issue were not sufficiently narrowly tailored to survive.

Justice Sotomayor’s dissent, in contrast, argue that religious gatherings and services bear little resemblance to short shopping trips in liquor stores or interactions with a mechanic. Instead, the dissents argue, religious services, with people remaining in close proximity for extended periods of time, with speech and often singing playing a key part, should be compared not to retail businesses but to theaters, concerts, and sporting venues — secular equivalents in terms of the types of activities engaged in and the risk of infection that they pose. And if that’s the relevant comparison, then instead of being treated worse than secular equivalents, New York’s rules treat religious communities much more favorably. Under New York’s rules, theaters, concert venues, and the like are closed entirely, regardless of capacity. The rules allowing religious gatherings with size restrictions then look like affirmative efforts by the government to accommodate the free exercise of religion. And rather than representing laws targeting religious conduct that require extraordinary justification to be upheld, Justice Sotomayor would view these as truly neutral in their application, and thus needing only ordinary justifications and a lack of overt hostility to religion.

I find the judgment call in this case — whether Justice Sotomayor’s understanding of the rules’s treatment of public assemblies is more appropriate or whether the simple fact that a wide range of businesses were permitted to meet under less restrictive rules indicates disfavoring of religion — very hard. On the one hand, Justice Sotomayor is surely right that the mere fact that religious meetings are given specific limitations does not imply that they are disfavored when similar secular assemblies are prohibited outright. But the per curiam opinion’s point about the breadth of what is permitted for secular businesses — and the lack of significant effort to make sure that religious gatherings were not unduly limited — also seems persuasive to me. I believe in a very strong Free Exercise Clause, joined with a similarly strong Establishment Clause jurisprudence. Religion is special, and the government should have to show more than that religious beliefs are not uniquely disfavored, at the same time as the government should not be permitted to provide support to or to endorse religious belief. In light of that, I would be inclined to agree with the majority here.

Religious groups should choose to not meet in person during this crisis, and the government can adopt narrowly tailored rules limiting religious gatherings when it applies those rules evenly. But despite the differences between religious gatherings and many other businesses, applying specific limits only to the religious gatherings while permitting stores to have denser and longer lasting gatherings does not seem consistent with respecting the Free Exercise rights of churches, synagogues, and other houses of worship. I believe that New York needed to either craft its rules more carefully or accept that its requests of religious communities needed to be hortatory, urging them to do the right thing, rather than mandatory, requiring them to do so. But my overall point is that the substantive point here is close, and there is much more agreement within the Court about the basic framework to apply than most people seem to understand.

The Procedural Posture is Complicated — but the Majority has the Better View

While Justice Sotomayor, joined by Kagan, dissented primarily on the substantive analysis, both Chief Justice Roberts and Justice Breyer, joined by Sotomayor and Kagan, would have denied the injunction based on procedural considerations. In particular, New York has since changed the rules that apply to the plaintiffs in these cases (the areas where their buildings are have been reclassified as “yellow zones”) and argued that the case was moot. Furthermore, injunctive relief pending appeal is disfavored, especially when the lower courts have ruled against the plaintiffs on the merits.

These are real and credible arguments, with plenty of authority behind them. Nonetheless, I think that the majority has the better view. When the government can adjust its policies rapidly — as it obviously can, and must be able to with regards to COVID-19 — courts should be willing to carry out the full judicial process based on the significant chance that the government will change its policies again. In part, this is based on mistrust of the executive. I think experience shows that the executive is entirely willing to engage in cat-and-mouse games to avoid court review. But the broader point is that Justice Breyer’s remedy for those problems is worse than the problems. Justice Breyer argues that if New York changes its policies back, the Court could respond with alacrity then — perhaps deciding the case on letter briefs within “a day or two, perhaps even in a few hours.” Mootness and similar doctrines are designed to make sure that cases are fully argued by actual litigants, with actually opposed interests, rather than courts just opining in the abstract or deciding cases where one side has no real interest in presenting the best forms of its arguments. Beyond the textual arguments, the argument is that deciding moot cases will produce bad law. To a far greater degree, the situation where the Court makes law deciding under the gun, needing to rush out an opinion and an order (or an order with opinion to follow), based on incomplete and hurried briefing, is a recipe for poorly reasoned decision-making. As a result, courts have created doctrines such as an exception to mootness for cases that are “capable of repetition yet evading review.” I’m hard pressed to identify a better example of that than this case, where the government retains the restrictive rules on entities in orange and red zones, but recategorizes the plaintiffs’ as in a yellow zone — with no promise that their zone will not be red tomorrow.

Generally speaking, the strong advocates for strict interpretations of mootness and similar doctrines have been conservative justices. The liberal perspective has usually been that these doctrines can allow injustices to remain in place because of overly technical claims. While this does raise real questions of whether both more conservative justices and more moderate justices answer ostensibly neutral procedural questions based on their opinions of the substantive merits, the Court’s willingness to adjudicate this matter now seems appropriate and positive to me.

Justice Gorsuch’s Opinion Contributes to Questions of Legitimacy

While I lean towards thinking that the majority opinion is correct (and Justice Kavanaugh’s concurrence is unremarkable), Justice Gorsuch’s concurrence stands out as ill-advised. Justice Gorsuch presents this case as trivially easy, and as a result makes it seem like the dissenters were willing to throw out the Constitution. It has the feeling of “why don’t the dissenters care about what the law says?” But of course, that’s not a fair characterization of the dissenters at all. Roberts and Breyer don’t even make it clear what their position would be on the substantive questions. Moreover, Sotomayor and Kagan’s position is well-reasoned, careful, and consistent with precedent — even though a reasonable person could disagree with it.

Many people want to view this decision as a purely political decision, motivated by non-legal concerns. I don’t think that analysis is correct. This case is a difficult legal question, with good arguments on both sides. When Justice Gorsuch treats his colleagues’ arguments and understanding of precedent with as much disrespect as he does in his concurrence, he strengthens the case for those who think his decision (and the decision of his colleagues who agreed with him) was based not on a fair evaluation of the law and the facts but on his political preferences and prejudices. By trying to delegitimize his colleagues’ positions, he calls into question the legitimacy of his own position.

The Free Exercise Clause Should Protect the Weak and Unpopular, not the Politically Powerful and Influential Religions

Finally, I want to note a strangeness about this case, and about many recent Free Exercise Clause cases. The plaintiff in this case is the Roman Catholic Church — one of the largest and most politically connected churches in New York. Indeed, the named defendant, Gov. Andrew Cuomo, is himself a member of the Catholic Church and received his education through his undergraduate degree at Catholic schools. The plaintiff in the other case decided with this one is a group of Orthodox Jewish synagogues, Agudath Israel of America. As would be expected given New York City’s demography and a substantially sized and significantly politically cohesive Orthodox Jewish community, New York government has often been responsive to the concerns of the Orthodox Jewish community as well. Indeed, despite the claims that Gov. Cuomo targeted the Orthodox Jewish community by drawing the boundaries for the red zones and orange zones to target them, many public health authorities have criticized New York for being unwilling to provoke more political backlash from the Orthodox Jewish community by taking stronger action to prevent significant spread of COVID-19 in some of those communities. To people who agree with Justice Sotomayor’s analysis, this is a case where the government has already made substantial accommodations of religion — likely precisely because of the political influence and clout of groups like the Roman Catholic Church and the Orthodox Jewish community around and in New York City.

In contrast, the Supreme Court has often been willing to countenance heavy burdens on the religious practices of unpopular, minority religions. Local governments that ban alcoholic beverages often make exceptions for sacramental wine in the many churches that require it for a sacrament, but rarely are they so solicitous to the religious practices of the Native American Church and its sacramental use of peyote. The Supreme Court held in Employment Division v. Smith that government rules that harmed NAC members for their use of peyote did not violate the Free Exercise Clause. The further religious practice gets from the beliefs, norms, and rules of the majority, the less the Free Exercise Clause seems to protect it.

That seems entirely backward. The Free Exercise Clause should protect religious minorities most solicitously of all. And popular, politically powerful religious groups should face skepticism for their claims to need a particular exception guaranteed by the Constitution when they fail to get it through the political process. The alternative risks creating an environment where failure to defer to the powerful is treated as oppressing them, while the weak and unpopular continue to be disfavored.



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