Supreme Court: A conservative stand for ‘religious liberty’

Supreme Court: A conservative stand for ‘religious liberty’

Americans have gotten their “first glimpse of how profoundly President Trump had transformed the Supreme Court,” said Adam Liptak in The New York Times. With “staunch conservative” Justice Amy Coney Barrett replacing the liberal Justice Ruth Bader Ginsburg, the court’s newly empowered conservative majority last week dealt “a body blow” to New York Gov. 

Andrew Cuomo’s pandemic restrictions for houses of worship. Cuomo’s restrictions had limited churches, synagogues, and mosques to 10 and 25 people in regions where the testpositivity rate hit certain benchmarks, regardless of building size. Chief Justice John Roberts voted with the court’s three liberals, as the moderate conservative sometimes does, but the new conservative bloc formed a 5-4 majority and denounced those restrictions as violations of the plaintiffs’ constitutional right to “the free exercise” of religion. It was a marked departure from similar cases in California and Nevada, decided in May and July, before Ginsburg’s death. In those cases, Roberts cast the deciding fifth vote, siding with his liberal colleagues in finding that officials and public health experts were “better positioned than judges” to make such decisions. This time, the unsigned 5-4 majority opinion—which some legal analysts believe was written by Barrett—charged that New York had imposed more severe restrictions on churches and synagogues than on “essential” secular businesses like manufacturing plants, auto repair shops, and acupuncture clinics. 

The six opinions written by the justices “laid bare” deep ideological fissures on the court, said Joan Biskupic in Justice Neil Gorsuch, a Trump appointee, wrote “an especially caustic” concurring opinion that derided the majority one written by Roberts in May on the California case, which has since been used as a model for lower courts around the country. Gorsuch called that ruling “nonbinding and expired,” and added, “We may not shelter in place when the Constitution is under attack.” Justice Brett Kavanaugh, another Trump appointee, likened the liberal dissenters’ position to “wholesale judicial abdication” of First Amendment constitutional rights. 

Justice Sonia Sotomayor wrote “a strong rebuttal,” said Raul Reyes in In a dissent joined by Justice Elena Kagan, she accused the conservative majority of playing “a deadly game in second-guessing” health experts, and said their ruling would “only exacerbate the nation’s suffering.” She particularly criticized Gorsuch’s sarcastic comparison of New York’s treatment of religious institutions with that of “liquor stores and bike shops,” noting that medical experts had traced many outbreaks of Covid-19 to “large groups of people gathering, speaking, and singing in close proximity indoors for extended periods.” She also tartly chided conservatives for accusing Cuomo of religious discrimination after they’d upheld Trump’s self-described “Muslim ban” on travelers from primarily Muslim nations. 

This victory for “religious liberty” was possible only because Barrett is now on the court, said Henry Olsen in The Washington Post. Trump chose the former appellate court judge on the basis of her “originalist jurisprudence, combined with her evident devout faith.” She’s validated the enthusiastic support religious conservatives gave her nomination. “The court’s ruling is neither surprising nor alarming,” said in an editorial. The justices didn’t say religious institutions are now free to pack in worshippers; it said that states should treat churches and synagogues the same way they do essential businesses. 

That’s nonsense, said Laurence Tribe and Michael Dorf in USA Houses of worship have actually been treated “more favorably than comparably risky secular activities,” such as concerts, theater performances, and public lectures, all of which have been shut down entirely. With more than 260,000 Americans already dead in this out-of-control pandemic, “it is at best tonedeaf,” and at worst extremist, for court conservatives to find “the temporary loss of liberty” in pandemic restrictions more onerous than adding to a soaring death toll. It’s also “chilling” that Gorsuch condescendingly compared previous rulings protecting what he dismissed as made-up rights to “bodily integrity” and privacy with what he considers a real constitutional right to practice religion. 

That’s a warning that in future cases, the court will favor religious freedom when it’s pitted against access to contraception and abortion and LGBTQ rights. Clearly, “the tide has turned,” said Steven Mazie in The Washington Post. Even before Barrett’s ascension, the court had been deferential to religious groups and individuals who wished to have “carve-outs” from rules “that the rest of society must follow,” such as providing contraception in health-care plans. Roberts has always carefully navigated such hot-button rulings, hoping to “tamp down the court’s perceived politicization.” With Barrett on board, the court’s most conservative justices have sounded a triumphant note that they now have “a five-vote majority that does not rely on the chief’s assent.”