The Supreme Court’s decision in Roman Catholic Diocese of Brooklyn, New York v. Cuomo is a harbinger of things to come. The opinion is the first that Justice Amy Coney Barrett joined since Republican senators confirmed her to the Court. And the Court’s reasoning in that opinion makes clear how significant her confirmation will be: The Court ruled on a nonissue, signaling its eagerness to change existing law. The Court also changed the law in ways that will limit government’s ability to respond to the COVID-19 pandemic, and to govern more generally as well.
This case involved a challenge to Governor Andrew Cuomo’s restrictions on in-person gatherings. By executive order, the governor had prohibited in-person gatherings at nonessential businesses that were in COVID hot spots (which the order labeled as red or orange zones). But the order exempted churches and religious institutions from that prohibition; houses of worship could hold 10- to 15-person gatherings indoors.
Several religious institutions sued to prevent enforcement of the order. But by the time the Court acted on their request, the institutions were no longer subject to the limitation. The order’s restrictions depend on whether particular areas were COVID hot spots; in part because the governor’s restrictions helped to reduce the spread of the virus that causes COVID-19, conditions had improved to a point where the locations were no longer considered red or orange zones. And once those areas were no longer hot spots, the institutions could hold in-person gatherings at 50 percent of their capacity.
So there was no real controversy regarding the 10- to 15-person restrictions; no one subject to those restrictions had challenged the order. But the Court decided to declare the restrictions unconstitutional anyway. The Court barely bothered to say why; it insisted that the religious institutions “remain under a constant threat that the area … will be reclassified as red or orange.” But that does not explain why the Court had to adjudicate the case now; it could have waited for a reclassification. Given what we know about COVID, when an area becomes a hot spot, it remains that way for at least a few weeks—more than enough time for another expedited challenge to make its way through the courts.
The Court’s eagerness to invalidate the restrictions is revealing. It suggests that the newly conservative supermajority cannot wait to change the law.
In this case, the Court changed the law in ways both small and large. Under current doctrine, “generally applicable” policies—those that do not explicitly mention religion—are generally constitutional unless the policies are motivated by a desire to discriminate against particular religions. The Court’s opinion signaled a shift in what suffices as proof of discrimination and an even larger change in what it means for a law to be generally applicable.
The more minor change continued a trend in the Court’s willingness to conclude that government officials were motivated by discrimination against Judeo-Christian, particularly Christian, religions. The Court’s opinion concluded that “statements made in connection with the challenged rules can be viewed as targeting the ‘ultra-orthodox [Jewish] community.’” Note the language—the Court said that it was sufficient that the statements can be viewed as targeting a religious group, not that the statements showed the order was actually intended to target a religious group.
That is not the legal standard the Court has used before. Consider the case involving President Trump’s immigration restrictions on Muslim-majority countries. In that case, the Court applied a different legal test, saying it would uphold the policy “so long as it can reasonably be understood to result from” a legitimate justification.
The content of the offending statements that allegedly evinced discrimination also make clear how easily the Court will conclude that officials discriminated against religion. When Governor Cuomo announced the restrictions, he observed that one of the identified COVID clusters had happened in the “ultra-Orthodox community”; it was “a predominantly ultra-Orthodox cluster,” he explained. That statement does not evince contempt or animus toward Orthodox Jews; it describes the COVID cases the city had identified.
As Justice Sonia Sotomayor observed in a stinging dissent, the Court had previously concluded that Trump’s immigration restrictions on Muslim-majority countries were not based on hostility toward Muslims even though “President Trump had described the Proclamation as a ‘Muslim Ban,’ originally conceived as a ‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” As Sotomayor pithily explained, “If the President’s statements did not show that the challenged restrictions violate the minimum requirement of neutrality to religion, it is hard to see how Governor Cuomo’s do.”
The travel ban is hardly the only case in which this Court has turned the other way when there were allegations of more explicit discrimination against Muslims. In Dunn v. Ray, the Court allowed Alabama to execute a Black, Muslim man after the state refused to allow him to meet with an imam in his final moments. The Alabama prison offered only a Christian chaplain to attend to prisoners in those circumstances.
The Court’s willingness to infer discrimination against Judeo-Christian religions from poorly articulated remarks that accompanied a response to a significant public health crisis may make other laws and policies vulnerable to claims of religious discrimination as well. Consider how the reasoning in the Roman Catholic Diocese case might play out in one of the cases pending before the Court: Fulton v. City of Philadelphia. This case involves a challenge to the city’s rules for awarding contracts to foster care agencies. One of the conditions for receiving a city contract to certify foster parents is that the agency not discriminate on the basis of race, sex, or sexual orientation.
Several agencies wanted to have a contract to certify foster parents but also wanted to refuse to certify same sex couples. The agencies sued, arguing that the condition discriminated against them on the basis of their religion. As evidence of discrimination, they pointed to statements by the city commissioner expressing that “it would be great if we could follow the teachings of Pope Francis.” Is that appeal to common ground enough to convince the Court’s conservative supermajority that city officials were discriminating against private foster care agencies when it asked them not to discriminate against same sex couples? Time will tell.
The other important shift in the Roman Catholic Diocese ruling is what the Court said about why the policy was not generally applicable. The Court reasoned that some businesses designated as essential did not seem, to the Court, more essential than houses of worship. Those “essential” businesses included acupuncture facilities, campgrounds, and garages. But the latter two are outdoors, not indoors. And acupuncture facilities do not involve large gatherings. The Court’s blithe conclusion that those businesses were nonetheless so similar to houses of worship that the distinctions between them evinced religious discrimination is an ominous sign about what other laws the Court will deem insufficiently evenhanded.
Consider how this could play out with respect to policies regarding the coronavirus. All of the shutdown orders and restrictions differentiate between various businesses and organizations. They have to decide which ones can stay open and to what extent. If the Court is truly going to assess for itself, and with such sloppy generalizations, whether religious institutions are treated similarly to other institutions, then the Court is assuming for itself the power to decide how government should respond to the coronavirus. Governments have to draw some distinctions between businesses and organizations, and if the Court is going to second guess all of those distinctions, then all coronavirus restrictions are potentially vulnerable. Indeed, on Thursday, the Supreme Court vacated a lower court ruling that upheld the California coronavirus restrictions applicable to houses of worship. The Court directed the lower court to take another look at the issue in light of its Roman Catholic Diocese decision.
As the country appears to be rounding the corner on the coronavirus, waiting for vaccines to be distributed, now would be a particularly bad time for the Court to start hacking away at the public health responses. Now is the time to try to keep as many people healthy as possible—so everyone can get vaccinated and return to their lives.
If the Court’s opinion itself provided indications of concerning changes to come, one response to the opinion offers some reason to be optimistic. Governor Cuomo dismissively and derisively called the ruling “irrelevant,” a reference to the fact that the restrictions were no longer in place. The statement calls to mind the response of Vermont’s secretary of state to the Supreme Court’s opinion in an election law case. In that case, the Court refused to allow a lower court to expand the receipt deadline for mail-in ballots that may have been caught up in mailing delays amid the pandemic. In a separate writing, Justice Brett Kavanaugh offered several unpersuasive defenses for the Court’s decision, including the claim that states’ ability to respond differently to the pandemic was a virtue, not a disadvantage. As evidence that states responded in different ways, Kavanaugh noted that Vermont had not altered its election rules.
But Vermont had altered its election rules to respond to the pandemic. And the secretary of state, Jim Condos, was none too amused that Kavanaugh said otherwise. In a blistering statement, the secretary noted that Vermont sent mail ballots to everyone, provided prepaid return envelopes, enabled outdoor and curbside voting, and several other changes. Kavanaugh modified his opinion to note that Vermont had not changed its election deadline for mail-in ballots. Vermont was not satisfied with that one-word change. Condos again issued a blistering statement, accusing Kavanaugh of obscuring the facts in service of suppressing votes.
If the increasingly conservative Supreme Court follows through on the signals it sent in its Roman Catholic Diocese ruling, then state officials should look to Condos and to Cuomo as examples of how to respond. A Court that makes it harder to vote and harder to weather the coronavirus pandemic is not worthy of political deference; it should be challenged, and officials can use these statements to inform the public about what the Court is doing.
Leah Litman is an assistant professor of law at the University of Michigan.