Last Wednesday evening, just before midnight, the Supreme Court of the United State (SCOTUS) released its decision in the matter of the Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York. In this case the Court sided with the Roman Catholic Diocese of Brooklyn and the Agaduth Israel of America organization by enjoining New York Governor Andrew Cuomo from restricting the rights of these two religious groups to hold congregate, in-person worship services, as a matter of public health during the pandemic.
Two things were notable about this injunction. First, the Court reversed itself in terms
of how it ruled in two similar cases brought by other religious groups earlier
in 2020. Second, this was the first
case in which Justice Amy Coney Barrett (who had replaced the late Justice Ruth
Bader Ginzburg) changed the outcome of this case before the nation’s highest
court.
Not surprisingly, this SCOTUS ruling was greeted with
praise by conservative pastor Franklin Graham who tweeted: “This Thanksgiving I’m thankful for President
Trump’s appointment of 3 conservative #SCOTUS justices who ruled last night in
favor of churches & against gov't overreach in the state of New York.” Graham’s sentiments were echoed by the
editors of National Review magazine who opined that, in its November 25th
decision, “the Supreme Court got church restrictions right.”
Predictably, Americans United for the Separation of
Church and State, offered an alternative viewpoint: “The
Supreme Court’s order misuses religious freedom and endangers the public health
of everyone in New York. With coronavirus cases spiking across the country, we
should be heeding the advice of public health experts who recommend limiting
large gatherings. COVID-19 doesn’t discriminate between religious and secular
gatherings; on numerous occasions, infections at houses of worship have led to
major outbreaks in surrounding communities….”[1]
The attention given to this SCOTUS decision led me to
look at the actual decision,[2] along with the comments of
the justices who concurred with or dissented from it. Doing so has left me puzzled and troubled
about the implications this decision is likely to have across the United
States.
First, Justice Neal Gorsuch (in a concurring opinion) proposed the notion that anti-religious bias,
not concern for public safety, was Governor Cuomo’s primary motive in this
matter. “Who knew public health would
so perfectly align with secular convenience?” Gorsuch asked, before concluding
that “the only explanation for treating
religious places differently [from secular places] seems to be a judgment that what happens there
[in religious gatherings] just isn’t as ‘essential’ as what happens in secular
spaces.”
Gorsuch also seems to propose that Governor Cuomo
personally (and capriciously?) decided to alter the pandemic “threat level”
affecting congregations of the Brooklyn Diocese: “The State has effectively sought to ban all
traditional forms of worship in affected ‘zones’ whenever the Governor decrees
and for as long as he chooses…..[And] just the other day, the Governor changed
his color code for Brooklyn and Queens where the plaintiffs are located….” (emphasis added).[3]
Surely, one would hope, Justice Gorsuch realizes that
public health conditions during the pandemic are often changing as the
coronavirus ebbs and flows! Or does he?
It seems to me that the virus itself—not Gov. Cuomo or any other elected
official—is the “culprit” here, in terms of determining when a geographical
area is deemed to be a “hot spot.”
Justice Gorsuch also muddies the water when comparing
religious organizations to non-religious organizations. So he criticizes Gov. Cuomo for alleging
that “it may be unsafe to go to church, but it is always fine to pick up
another bottle of wine, shop for a new bike, or spend the afternoon exploring
your distal points and meridians.”[4] In other words, Gorsuch contends that liquor
stores, bike shops and acupuncturist clinics are comparable to congregations of
religious believers.
Nothing could be farther from the truth! As Justice Sonia Sotomayor (in her clear and
thoughtful dissent from the decision) helpfully points out, “[state officials]
may restrict attendance at houses of worship so long as comparable secular
institutions face restrictions that are at least equally as strict.” Sotomayor identifies such organizations as
those that offer “lectures, concerts, movie showings, spectator sports, and
theatrical performances, where large groups of people gather in close proximity
for extended periods of time.”[5]
Now, gentle reader, you may be wondering why a retired
Lutheran pastor living half-a-continent away from New York City would even care
about these issues. In short: I’m passionately concerned that this decision
by SCOTUS may increase the likelihood that the Coronavirus will cause more
illness and take more lives. That’s
because all across the nation—including rural areas that make up so much of the
Upper Midwest—we have local faith communities that are struggling to live by
the public health measures (face-masking, social distancing, avoiding congregate
in-person worship) designed to stem the tide of the pandemic. Sadly, too many folks in these scattered rural
religious communities struggle to take the coronavirus as seriously as is
necessary, to safeguard the health and wellness of them and their neighbors.
I fear that reports about the Diocese of Brooklyn v.
Governor Cuomo case could provide “ammunition” to religious congregants who are
already pushing back on their pastors, church councils, and local governmental
leaders as they seek to “be church” in the midst of this pandemic. What everyone needs to be clear about is
that a large group of people gathering, speaking, and singing in close
proximity indoors for extended periods of time—an apt description of a “normal”
congregational worship gathering--is one of the most dangerous settings for
spreading the coronavirus.
I am deeply grateful for our nation’s constitutional
commitment to the free exercise of religion—and I long for the day when we can
again bask in this freedom, without needing to follow the difficult public
health remedies that have been prescribed for us. We must be clear, however, that the U.S.
Constitution is not—in the immortal words of former Justice Robert Jackson—a suicide
pact. In other words, restrictions that
may temporarily need to be made with respect to rights like freedom of religion
must be balanced against the need for survival of the state and its
people.
Lawrence R. Wohlrabe
November 29, 2020
[1] Supreme
Court Undermines Religious Freedom And Public Health By Ruling Against New York
Health Order | Americans United for Separation of Church and State
(au.org). Quotes in this blogpost not otherwise credited are taken from this document.
[3] In
the SCOTUS decision itself, the New York state regulation is said to “single
out houses of worship for especially harsh treatment.” (emphasis
added)
[4] “Distal
points and meridians” have to do with acupuncture.
[5] Ironically,
by the time the SCOTUS issued its decision in this matter, the course of the
coronavirus had already made it possible for the pandemic threat level in the
neighborhoods comprising the Diocese of Brooklyn and Agudath Israel of America
to no longer be classified as orange or red “hot zones.”
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