Last July, by a vote of 5-4, the Supreme Court rejected the petition of a Nevada church seeking to overturn the Governor’s 50-person limit on attendance at religious services. Chief Justice Roberts joined the four liberal Justices—Ginsburg, Breyer, Kagan, and Sotomayor. Justice Alito dissented on the grounds that the Governor’s order violated the First Amendment right to worship by allowing more people to gamble in casinos than to pray in church.
This was the second case dealing with state-imposed limitations on church service attendance. The first was a California challenge to Governor Gavin Newsom’s order limiting houses of worship to 25% of capacity but not more than 100 attendees. The lineup of Justices was the same, with the Chief Justice writing for the five-member majority. He explained that the California restrictions on church attendance were comparable to those on “comparable secular gatherings” such as lectures, concerts, and sports events. As such, he wrote, they were “consistent” with religious freedom under the First Amendment.
The Chief Justice stressed that when it comes to public health, an “unelected federal judiciary” lacks the necessary scientific expertise and should not “second-guess “ those who are responsible for protecting the public. He cited a 1905 case called Jacobson v. Massachusetts, where the Court upheld a Cambridge, Massachusetts, ordinance requiring smallpox vaccinations.
In his dissent, Justice Kavanaugh asked, “Why can someone safely walk down a grocery store aisle but not a pew,” or “safely interact with a brave deliverywoman but not with a stoic minister?” He suggested that the state could have taken other means, for example requiring social distancing, or imposing “reasonable occupancy caps” across the board.
Policy disagreements can rarely be solved by asking questions, and that is especially true here. When I walk through the grocery store, I keep on going and exit as fast as I can. If I enter a church or synagogue, I don’t walk down a pew, I sit on it for an extended period of time. I have no idea what my encounters with a “brave” delivery person have to do with interactions with a “stoic” clergyman. More often than not, UPS or FedEx just leaves the package at the door.
Justice Alito didn’t take those decisions lying down. He devoted much of his November 12, 2020, Federalist Society speech to his concern that “religious liberty is fast becoming a disfavored right.” In language sounding a lot like his late colleague, Justice Scalia, he pointed out that “you will not find a craps clause or a blackjack clause or a slot machine clause” in the First Amendment. And Alito criticized Roberts’s reliance on the Jacobson case. “I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country,” he said. “It would be good if what originates in Cambridge stayed in Cambridge.”
Justice Ginsburg, who voted with the majority in both the Nevada and California cases, died on September 18, 2020, exactly halfway between the Nevada ruling and the New York case that was to come in late November. During the interim, on October 27, 2020, Amy Coney Barrett was sworn in as Ruth Bader Ginsburg’s successor.
The Nevada and California cases are so yesterday, and so is Chief Justice Roberts. On November 25, 2020, in a case called Roman Catholic Diocese of Brooklyn v. Andrew M Cuomo, Governor, the Court—meaning a majority of five—agreed with the Roman Catholic Diocese of Brooklyn, and Agudath Israel of America, an organization of Haredi Orthodox Jews featured in last year’s Netflix series “Unorthodox.” The Court enjoined the enforcement of Governor Cuomo’s 10- and 25-person occupancy limits on houses of worship located in “red” and “orange” zones.
Justice Gorsuch, now in the majority, expressed his concern (among others) that the Governor’s order would cause irreparable harm to orthodox Jewish women. Orthodox Judaism requires ten men for a minyan (the quorum for Jewish public worship), he explained, so those women might be unable to attend Shabbat (Sabbath) services. He then had what is likely the last word, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
The constitutional issue raised by these state-imposed church attendance quotas is what lawyers call a close question on which reasonable people can take either side. But while slogans such as “no blackjack clause” and “no sabbatical” may make good reading, they don’t necessarily make good law, or for that matter good epidemiology. To be sure, the New York facts are not identical to the Nevada or California facts, but the differences are not enough to account for a different outcome.
And there is something unseemly about the Supreme Court going one way in the spring and the opposite way in the fall. During a public health crisis, when so much responsibility rests on the shoulders of governors and local health officials, there is something to be said for stability in the law.
The reason for this flip-flop isn’t hard to find, and Justice Alito need not worry that the constitutional right to worship will be “disfavored.” The game has changed, and Amy Coney Barrett, a product not of Cambridge but of Notre Dame, Indiana, is the game-changer.