In a late-night order on Thanksgiving eve, the U.S. Supreme Court ruled 5-4 to block New York’s restrictions on religious worship services in “red zones” where COVID-19 infection rates are exceptionally high.
The practical effect of the decision is nil—there are currently no “red zones” in effect—and the decision is both non-final (it is only imposing an injunction on the rules while the case against them proceeds) and quite narrow.
However, it will surely be read as a blank check for religious organizations to flout all manner of public regulations—as the same ultra-Orthodox Jewish communities that were affected by this rule have done in recent days at illicit weddings and other gatherings, endangering thousands upon thousands of lives.
And that makes it profoundly irresponsible.
Moreover, the Court had allowed similar, though less severe, rules to take effect last summer, also by a 5-4 vote, but with the late Justice Ginsberg in the majority. That means that this decision, Roman Catholic Diocese of Brooklyn v. Cuomo, is the first one in which Justice Amy Coney Barrett’s replacement of Justice Ginsberg decided the outcome. #AmyCovidBarrett is now trending on Twitter.
Upon close inspection, New York’s rules—like most COVID-19 emergency orders—are a patchwork of incoherence and contradiction. In the absence of national leadership, and in particular in the Mitch McConnell-engineered expiration of federal aid, this is the reality nationwide, as governors, mayors, and legislatures struggle to tailor rules that balance freedom, economic survival, and constitutional rights with public health and safety.
In the case of New York, places of worship were singled out with numerical limits—only 10 worshippers in the “red zone”—while a broad array of “essential businesses,” including liquor stores and nail salons, faced only percentage-based limits on capacity.
From a pure policy perspective, it’s easy to see why Governor Andrew Cuomo did this. Ultra-Orthodox Jewish communities in Brooklyn and upstate New York are flagrantly violating public health laws, not to mention science and morality, by holding massive weddings—check out this video of one in Williamsburg with thousands of maskless attendees—as well as clandestine religious classes and services in which no one is masked and participants are crammed together in poorly-ventilated rooms.
It’s a recipe for disease and death. And indeed, that has unfolded. In October, ultra-Orthodox neighborhoods had astonishing, terrifying COVID-19 infection rates of over 20 percent. The rates were so high they affected the city’s overall numbers, leading to the closure of public schools. (Ironically, almost no ultra-Orthodox Jews attend public school, and their private schools continue to offer in-person classes both legally and illegally).
So the “red zone” regulations were an attempt to stop the worst super-spreader events in the state.
At the same time, all sorts of not-really-essential businesses were designated as “essential” in order to save thousands of jobs. With federal aid stalled by Senate Republicans, Cuomo was faced with a massive spike in unemployment and poverty. So, nail salons became essential.
Unfortunately, when those two rules—one targeting religious institutions, the other exempting all kinds of other businesses—are set side by side, they clearly violate the Supreme Court’s First Amendment precedents, which hold that religious organizations must be treated equally to non-religious ones.
Moreover, the Catholic Diocese of Brooklyn was caught up in the “red zone” rules, which were clearly aimed at ultra-Orthodox Jewish institutions but which had to be religiously neutral. Catholic churches which could accommodate hundreds of people in vast, high-ceilinged spaces were restricted to 10 attendees, while small liquor stores could have twice that number. That makes no epidemiological sense.
So, on its own terms, the Court’s narrow ruling—temporarily enjoining this specific set of regulations is eminently reasonable.
But surely, this is not how it will be understood. Already, conservatives are crowing. Newt Gingrich, for example, tweeted joyfully that “Thanksgiving is perfect time for Supreme Court to overrule anti-religious politicians and reassert the First Amendment right to Freedom of Religion.”
That is obviously ridiculous. Governor Cuomo, an observant Catholic, is not “anti-religious.” And the rules in question have a clear rationale that is not antagonistic to religion, even if they ultimately fail constitutional scrutiny.
But Supreme Court opinions are read broadly, not narrowly. For example, remember Masterpiece Cakeshop, the case about a religious baker who refused to sell a wedding cake to a gay couple? That case was actually decided on very narrow grounds: a Colorado civil rights commission appearing not to take the baker’s religious beliefs into serious consideration. But it was read as a broad statement that anyone could “turn the gays away” for any reason.
Likewise here. There’s a reason #AmyCovidBarrett is trending today—because the Court’s decision will be (mis-)understood as striking down all limits on religious services, weddings, schools, and celebrations. It will likely cost hundreds, if not thousands, of lives.
And it didn’t have to do this. The Court should have dodged the issue by simply denying the temporary injunction, which, to repeat, has absolutely no practical effect since there are no “red zones” at present. That would have given New York time to write better regulations that are narrower, more detailed, and more explicitly based on epidemiological data, rather than broad categories that make no sense on close inspection.
And that would be good for everyone. It’s been well-observed, particularly because of Thanksgiving, that the national patchwork of rules—often dictated by the executive, rather the legislative, branch—are so incoherent that they erode confidence in the whole system. Why can I have dinner for 12 at a restaurant, but not at home? Why am I being told not to gather with even 10 family members, when a few blocks from where I’m writing these words, 200 ultra-Orthodox Jews just danced together, unmasked, in close quarters, at yet another massive wedding?
For that matter, why did New York schools just close, when there have been no significant outbreaks at schools and other businesses (gyms, restaurants, synagogues) are far more conducive to the spread?
None of this makes any sense, and everybody knows it—not just Trumpist Covidiots, but ordinary people trying to live our lives.
Maybe that can still happen now. Maybe the Supreme Court’s decision will inspire more responsible, more science-based, and more transparent rules that inspire confidence rather than confusion—and can pass constitutional muster as a result. I certainly hope so.
But I worry that this decision will be seen as a free pass to religious fundamentalists of all faiths who deny science, don’t care about the public good, and believe themselves to be above the virus and above the law. That would be absolutely devastating.