Picking Principle Over Disease

Terry H. Schwadron

Nov. 27, 2020

I can’t help but conclude that our Supreme Court justices are more interested in Big Statements than justice in any sense that applies to our practical concerns.

The midnight decision by the Court early Thursday (why a midnight announcement of a 5–4 decision?) to block pandemic-caused restrictions on religious gatherings in coronavirus hot spots is a good example.

The justices narrowly overturned their own recent tie vote on the issue to Say Loudly that the freedom of religion clause trumps any other public health concern. But the case involved churches and synagogues in one area of Brooklyn that was no longer under the order, making the practical application pretty murky if not outright moot.

And there was no guidance offered to mayors and governors flailing in how to devise public health guidelines that are at once appropriate, fair, localized, and yet responsive to a generalized view towards letting “religious institutions” decide their own fate.

There were five different opinions from the majority, but agreement that church groups should not be limited by restrictions more harshly than other businesses and gatherings. But the fact on the ground is that churches and religious groups actually are being given more latitude than arenas, theaters, concert sites and other secular sites.

Plus, over time, in its constant refrain for exemption for religious organizations from regulations of all sorts, “religious” groups have come to represent not only churches, mosques and synagogues, but parochial schools, nunneries, gatherings for weddings and funerals, and businesses operations whose owners claim religious rationale for political positions on such issues as abortion, same-sex marriage, the appropriateness of head coverings or the need to protect campuses from speakers with messages perceived as unpleasant by one group or another.

No Immediate Effect?

New York Gov. Andrew Cuomo was non-plussed by the Court decision, noting that the circumstances of the ever-changing, numerical findings of new infections, hospitalizations and deaths had already moved beyond the circumstances of this particular case, which would have restricted church attendance (and any other indoor activity) to under 10 people at a time.

It was the opposite of similar cases before the same Court from Nevada and California, which ended in a 4–5 tie. With coronavirus spiking again to astronomical numbers, what exactly does the Court want to tell us to do here?

Indeed, the religious organizations in question are allowed to have 50 percent of their pews filled under today’s number set — but from reading the decision, it is unclear to me whether even that is considered legal.

By avoiding the detail of trying to set a legally passable standard for restrictions, the Court has set a easily understood, but hard-to-implement imposition on anyone trying to stop public contagion.

I get that justices from the conservative majority on the Court think that there has been imbalance on enforcement of exemptions for religious reasons. Justice Samuel Alito even went public with a recent speech to the Federalist Society dwelling on this specific topic (What happened to judicial ethics about discussing topics under current review?).

And we all have seen the slew of decisions in recent years upholding the baker who refused to serve gay patrons who wanted a wedding cake, the Little Sisters organization that wanted (and already had) exemption from paying health care payments for employees because health care might include contraception, and other such cases in which Religion is set forth in outwardly partisan political cases.

And the 5–4 vote in the matter shows why there was a political fuss about the appointment of judges with records of outwardly political lean, including the addition of Justice Amy Coney Barrett, whose vote tipped the scales here.

But we have a global pandemic creating state, local and international emergencies. Are we not due some judicial guidance in how best to set policy under trying circumstances?

The Alternative

In lieu of rules, our democratic society should be asking more of its citizens to do the right thing.

Why aren’t the religious leaders who have time, money and sufficient legal passion to file challenges all the way to the Supreme Court not taking the prime responsibility here to tell congregants to stay home during a public contagion crisis? Why isn’t attendance by large numbers of mask-optional, crowded congregants at the funeral of a Hasidic wedding being discouraged by the rabbi? Why isn’t the Diocese telling people in suddenly red hotspots that it is the Church’s desire that they stay alive and attend Mass by Zoom?

Of course, I would argue much the same about the role of churches in the issues raised by abortion and same-sex marriage. There would be no reason to argue about embedding specific religious mantras in the law if outside of law, religious groups persuaded congregants to act in what they see are moral ways, and to find kindness for those who disagree. It is totally consistent to me that I oppose abortion in my life, but do not seek to impose it as law for others.

That feels like much the principle at work here. If religious groups were truly committed to protecting their congregants in the midst of a pandemic, we wouldn’t have the need for orders that seem restrictive in ways that abridge freedom of religion. It is the insistence of particular religious groups to shrug off health concerns that is creating the basis for these cases.

Regardless of the Court’s decision, what troubles me are rulings that are polemical and don’t solve the problem. That, too, is part of Justice.

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