Religious Freedom vs. Pandemic: Thoughts on Mixed Feelings

I view with some ambivalence the US Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the Court, by a five to four vote,  issued a preliminary injunction barring enforcement of New York Gov. Andrew Cuomo’s restriction limiting attendance at houses of worship.  Gov. Cuomo’s executive order had limited attendance in areas designated as red or orange zones (depending on the Covid positivity rate) to 10 or 25 worshipers respectively.  The lawsuits in which the Court issued this injunction were brought by the Roman Catholic Diocese of Brooklyn and by Agudath Israel, the preeminent advocacy organization for the interests of the chareidi community.

On the one hand, I am glad to see the Supreme Court taking religious freedom claims seriously, which it all too often hasn’t done in recent years.  On the other hand, to reach the conclusion it did, the Court had to second guess public health officials in the middle of a pandemic. I can’t disagree with the current Court’s approach to religious freedom, but I wish it had found a different case in which to articulate it, preferably one that did not challenge the States’ power to protect public health.  More to the point, I wish Agudath Israel had not been one of the plaintiffs who sought relief from the Court.

The right to free exercise of religion, though it is the first of the freedoms enumerated in the  Bill of Rights, has been weakened by the Supreme Court in the course of the last three decades.  The process of weakening religious freedom claims can be traced back to the Court’s 1990 decision (written by the late Justice Scalia) in Employment Division v. Smith.  In that decision, the Court effectively eviscerated the Free Exercise Clause, holding that religious conscience could not excuse the violation of a facially neutral application of the law.  Congress subsequently tried to expand the protection of religious freedom by passing a statute known as the Religious Freedom Restoration Act (RFRA), but the Court held that Congress could not impose on the States a more expansive protection for religious freedom than that offered by the Constitution, as interpreted by the Court.  (The RFRA remains in effect as applied to the actions of federal agencies, but does not bind the States.)  Thus, according to the Court, the only protection offered by the Free Exercise Clause is to prohibit discrimination against religious activity by reason of its religious nature.  In the case of Church of Lukumi Babalu Aye v. Hialeah, for example, the Court struck down a local ordinance prohibiting ritual animal sacrifice which did not apply to commercial slaughterhouses.

In Diocese of Brooklyn v. Cuomo, the Court sought to fit Gov. Cuomo’s pandemic restriction into the limited exception exemplified by Hialeah.  The essence of the Court’s unsigned majority opinion is that Gov. Cuomo’s restriction of churches and synagogues while other uses were deemed essential and thus permitted was an unconstitutional discrimination against religion.  To be sure, some of the restrictions seem arbitrary.  Particularly problematic has been the failure to include houses of worship under the category of “essential services”.  As Justice Gorsuch said in his concurring opinion:

“[T]here is no world in which the Constitution tolerates color coded edicts that reopen liquor stores and bike shops and shutter churches, synagogues and mosques.

The procedural posture of the case makes the Court’s decision more troubling.  The Court does not frequently grant preliminary injunctions, preferring cases briefed and argued on a full record.  To justify doing so here, the Court had to find that the plaintiffs not only were likely to succeed on the underlying merits of the case but  would suffer irreparable injury if the injunction were not granted and that granting it would not harm the public interest.

With respect to irreparable injury, the Court’s ringing endorsement is welcome to anyone who has been disappointed by its previous cavalier treatment of religious freedom:

“The loss of First Amendment freedoms, for even a minimal period of time, unquestionably constitutes an irreparable injury.

In finding that no public harm would ensue if the injunction were granted, the Court’s decision stood on shakier ground. While conceding that

“[m]embers of this Court are not public health experts, and we should respect the judgment of those with a special expertise and responsibility in this area,

the Court nevertheless did not hesitate to conclude:

“The State has not shown that public health would be imperiled if less restrictive measures were adopted.

My preference would be for the Court to overrule Employment Division v. Smith and apply to Free Exercise claims the standard that Congress attempted to enact through the RFRA — that the Free Exercise Clause requires a State not to infringe on religious activity innless it is the least restrictive means of serving a compelling State interest .  So far, however, the Court has not signaled a willingness to take that step.  Its willingness to treat Free Exercise Clause more seriously seems limited to cases that can plausibly be characterized as discriminating against religious individuals or institutions.

Regardless of which standard is used, the Court’s decision is troubling.  Limiting the spread of a deadly contagion would seem to fit anyone’s definition of a compelling State interest.  To conclude as it did, the Court had to substitute its own judgment for that of public health officials.  Is it manifestly unreasonable, to take Justice Gorsuch’s example, to hold that a church or synagogue, where people customarily sit in close proximity for an extended period of time is riskier than a bike shop or liquor store where people usually stop only briefly?

In the long run, it may not much matter, since — I sincerely hope –a  comparable pandemic is unlikely to arise in the near future.  The effect of the case on Free Exercise jurisprudence is likely to be negligible.  As a sign of things to come — an indication of the Court’s attitude to religion — it is heartening .

What bothers me most about this case is not the Court’s decision but the fact that it was brought in the first place, at least by Agudath Israel.  (I leave it to the Roman Catholics to worry about the involvement of the Diocese of Brooklyn.)  It reinforces a general impression that the chareidi community, both here and in Israel, has not taking the pandemic seriously and is putting its cultural concerns above public health.  It should go without saying that traditional Hakakha places saving a life ahead of almost all other considerations.  Of course, observant Jews should understand and sympathize with — and indeed share — the sense of loss in the chareidi community, but pikuakh nefesh (saving a life) comes first.  Many  chareidi authorities have reacted accordingly, but there have been exceptions. Agudath Israel has achieved stature as the voice of the chareidi community in public affairs, and that stature carries with it a responsibility tot take a long view of the community’s interests.   I’m not convinced that Agudath Israel’s decision to use the pandemic as a vehicle for expanding religious liberty was consistent with that responsibility.

About the Author
Douglas Aronin is a retired attorney living in Forest Hills, Queens, who is continuing his lifelong involvement in the Jewish community. His writings have appeared in a wide range of print and online forums.
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