It didn’t take long for Justice Amy Coney Barrett to shift the balance of the U.S. Supreme Court. On Wednesday night, the high court issued a ruling against New York Gov. Andrew Cuomo’s restrictions on religious services to curtail the spread of COVID-19.
The 5-4 ruling won’t have any immediate practical effect. New York had already loosened the guidelines days earlier. But Barrett’s alignment with the court’s most conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — removed any doubt that the nomination that was rushed through just before the election was going to have an impact.
Chief Justice John Roberts, while conservative, had sometimes served as a moderating influence on the court before the Sept. 18 death of Ruth Bader Ginsburg. He had cast the deciding votes to remove a U.S. citizenship question from the 2020 census and to uphold the Affordable Care Act.
Most pertinent to this conflict of public health and religious liberty, Roberts sided with California and Nevada earlier this year in their orders to put stricter restrictions on houses of worship than on other indoor gatherings. In the California case, Roberts wrote that government officials should not “be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people.”
With Roberts suddenly outnumbered, that is exactly what happened in the New York case. At issue were the limits to 10 attendees in the red zones, where infections are highest, and 25 in the more permissive orange zones. Those restrictions were challenged by the Roman Catholic Diocese of Brooklyn and Jewish individuals, synagogues and organizations as a violation of religious liberty.
Justice Neil Gorsuch, one of three Trump appointees on the court, argued that the state was treating secular activities more favorably than religious gatherings. “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,” he wrote.
Actually, in the real world, people spend less time and in less proximity to others in a liquor store or bike shop than they would in a house of worship. Roberts noted as much in citing the activity in banks, grocery stores and laundromats in his opinion that upheld the California restrictions.
In the New York case, Roberts’ dissent did acknowledge that the New York guidelines on religious services seem “unduly restrictive.” But he rightly noted that there was no pressing need to address this “serious and difficult question,” considering that the restrictions had been lifted.
This case has been drawing outsize attention because conflicts involving claims of religious freedom and other individual rights have been reaching the court in recent years — and Barrett’s arrival was either greeted or dreaded, depending on one’s perspective, as solidifying the majority toward religious prerogatives. For example, a divided court in 2014 allowed family-owned companies to deny contraceptive coverage under Obamacare on religious grounds and in 2018 held that a Christian baker could refuse to make a wedding cake for same-sex couples. In a recent speech to the Federalist Society, Justice Samuel Alito bemoaned that the pandemic has resulted in “previously unimaginable” restrictions on individual liberty. “It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”
The New York ruling suggests that has become the prevailing view on the nation’s highest court.
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