Comment on the Supreme Court opinion in the New York churches case
Late last Wednesday before the Thanksgiving holiday the US Supreme Court issued a decision on an emergency relief petition involving attendance restrictions imposed by the State of New York on houses of worship. In a 5-4 decision, the Supreme Court granted the emergency petition and prohibited New York from enforcing severe restrictions on attendance at indoor religious gatherings. From my experience, the Supreme Court does not grant many of these petitions. The Court much prefers to let the lower courts hash it out and then consider the matter after full briefing. This was a significant decision and a departure from the emergency petitions of a similar nature last Spring. The opinion can be accessed at the link on this note.
Justice Gorsuch wrote a concurring opinion in which he states, “Even if the the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.” Justice Gorsuch takes the Court to task for the Springtime decisions that supported the state’s control over churches in California. The fire in Justice Gorsuch’s concurrence reminds me some of Justice Scalia’s writings, only without the sarcasm.
I have two take-aways from this decision. First, the pandemic is still an emergency, but not the same emergency it was in the Spring. We have learned to manage it. I said last Spring that the government has extraordinary power to handle health emergencies and I didn’t see the courts wanting to get involved in contradicting health care experts. This thinking is referenced in the Court’s opinion. But now, the inconsistency of allowing certain businesses to operate as essential and not allowing more than 10 or 25 in a house of worship is no longer the unknown emergency it was in the Spring. The inconsistency remains subject to strict scrutiny, but the compelling government interest isn’t as compelling as it was when we knew little about the virus. So, there is a change in the facts as we know them today. Let’s be honest, allowing liquor stores and casinos to remain open and shutting down churches is remarkably inconsistent with the First Amendment.
Second, and probably of greater significance, the Supreme Court is aggressively speaking out on religious freedom. I’ll admit this has been a passion of mine for the 37 years I’ve been an attorney (so I see through a colored lens). I have seen the high Court pull back in religious freedom cases I thought were slam dunks. I saw the high Court gut the free exercise clause in Smith case in 1990 (which led to congressional action to pass the Religious Freedom Restoration Act–RFRA). The addition of Justice Barret appears to have made a huge difference in this matter. It is high time the Supreme Court recognizes religious liberty as a significant independent right and not just a subset of the free speech clause (totally my editorial comment!). I’m obviously pleased with this decision.
Procedurally, the New York Case from Wednesday was an emergency application from the lower court proceedings. The Supreme Court did a course correction for the lower courts. The case is still in the lower courts and may well wind up before the Supreme Court for a full merit review. If it does, we have a good idea where it will go. For now, all the lower courts are on notice that inconsistent Covid-19 restrictions on houses of worship are a no-no. I would not be surprised to see California’s restrictions challenged quickly in light of the New York decision. It also may well signal a change in religious freedom jurisprudence on the horizon.
To read the full Supreme Court opinion, click here.
Chuck Hervas is the Managing Partner at Hervas, Condon & Bersani, P. C.