By Steven V. Mazie
Steven V. Mazie is the Supreme Court correspondent for the Economist and professor of political studies at Bard High School Early College in Manhattan. His most recent book is “American Justice 2015: The Dramatic Tenth Term of the Roberts Court.”
Though her name appears nowhere in the 33 pages of opinions issued on Thanksgiving eve, Amy Coney Barrett looms large in her first consequential vote as a Supreme Court justice. Barrett played the decisive role in the court’s decision Wednesday to grant requests from Catholics and Orthodox Jews in New York City to block church and synagogue attendance limits in covid-19 hot spots.
During the pandemic’s first wave in the spring, the Supreme Court voted twice not to interfere when states such as California and Nevada restricted indoor gatherings, including church services. Those votes were 5 to 4, with Chief Justice John G. Roberts Jr. joining his four liberal colleagues.
But with the death of Justice Ruth Bader Ginsburg in September — and Barrett’s ascension to the bench — the tide has turned. Roberts is now unable to stop a majority from overruling local officials as they try to combat the coronavirus’s spread. Limiting attendance to 10 or 25 worshipers in the most dangerous zones, the majority said in its unsigned opinion, is “far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.”
As infections and deaths spike across the country, the decision is a sign that the newly configured Supreme Court will not look kindly on steps taken by state and local officials to protect health and safety if they interfere with the autonomy of religious entities. This switch may come at a painful cost. “I see no justification for the Court’s change of heart” from its earlier decisions, Justice Sonia Sotomayor wrote in dissent, as New York’s rules actually favor houses of worship over movie theaters and sporting arenas that are closed entirely. She warns that allowing large groups to congregate in churches “will only exacerbate the Nation’s suffering.”
The impact of Barrett’s arrival goes well beyond tying states’ hands in the fight against covid-19. Her vote will accelerate a trend toward deference to religious institutions that her fellow conservatives — including the chief justice — have been pursuing for a decade. Once upon a time, the court sought to balance the twin religion clauses of the First Amendment — separation of church and state on one hand and free exercise of religion on the other. More recently, its right wing has been all but ignoring the Constitution’s proscription against an establishment of religion while deferring to increasingly far-fetched religious-liberty claims.
Barrett is likely to ramp up the court’s support for people and organizations that demand carve-outs from rules that the rest of society must follow. In recent years, the Supreme Court has let religious corporations off the hook from an Affordable Care Act requirement that employee health insurance include free contraception. It has bowed to religious nonprofits that refuse to even sign a form giving them an exemption from this mandate. It has expanded the “ministerial exemption” to federal anti-discrimination claims for religious-school teachers. And it told a Christian baker he did not need to bake a wedding cake for a gay couple, despite the state’s protections for LGBT customers.
Now the court seems bound to favor religion even more heavily. The wedding-cake decision was a narrow ruling based on specific evidence of anti-religious hostility from a state civil rights commissioner; the justices did not grapple with the more fundamental tensions between anti-discrimination law and religious prerogatives. But earlier this month, the court considered whether Philadelphia can be forced to work with a Catholic social services agency that rejects same-sex couples as foster parents. This case tees up a reconsideration of Employment Division v. Smith, a 1990 case written by Antonin Scalia holding that neutral laws that apply equally to all do not violate the Constitution, even if they have an incidental impact on religious exercise.
This shift is bringing with it a notable testiness among the justices. In his concurring opinion in the New York case, Justice Neil M. Gorsuch took aim at Roberts and the liberal dissenters, accusing them of sending the Constitution on “a holiday during this pandemic.” Roberts swatted back with his customary restraint: The dissenters, he wrote, “simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
This is not the first time we have seen tensions between Roberts, who strives to tamp down the court’s perceived politicization, and the justices to his right. But Gorsuch’s bombast — and the uncommonly partisan and recrimination-filled speech Justice Samuel A. Alito Jr. delivered to the Federalist Society this month — carries a disturbing air of triumphalism. With Barrett’s arrival, the court’s staunchest conservatives have something to give thanks for: a five-vote majority that does not rely on the chief’s assent.