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A New View on Religious Liberty from the Supreme Court

On September 26, 2020, Justice Amy Coney Barrett was nominated by President Donald J. Trump to the Supreme Court of the United States (SCOTUS), following the death of former Supreme Court Justice Ruth Bader Ginsburg a week earlier. The President’s nomination faced major criticism, as it came weeks before a general election. The opinion was issued as one-third of the United States Senate stood for election or re-election. The Senate, controlled by the Republican Party, decided to allow Senate Judicial Hearings of Mrs. Barrett and hold her nomination for a vote before the presidential election. Contrary to popular expectations, the most senior Democrat on the Senate Judiciary Committee, Diane Feinstein (CA), remarked that the hearings were, “one of the best set of hearings that I have heard in my lifetime.” She went so far as to hug her Republican counterpart, Chairman Lindsey Graham, after the hearing. Such a bipartisan gesture and compliment would be one of the factors that would support political charges of senility, later leading to her resignation as ranking Democratic member of the Senate Judiciary Committee.   After the hearings, Mrs. Barrett’s public opinion polls would be higher than before they began. Mrs. Barrett would go on to be officially confirmed by the United States Senate by a party-line vote of 52-48 on October 22, 2020 and subsequently sworn in by Supreme Court Justice Clarence Thomas. 

Almost four months later, have Justice Barrett’s rulings been as unexpected as her hearings were? Her term is too short to definitively analyze, but we may speculate. Sworn in during a national pandemic and election season, her early landmark opinions weigh in on the limits of political, namely executive, power. This past November, Justice Barrett cast a pivotal vote on the limits of executive power when enforcing public health measures. While not penning a concurring opinion, Justice Barrett participated in the narrow 5-4 ruling in Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York. The ruling struck down attendance limits on houses of worship within COVID-19 ‘red zones’ and ‘orange zones.’ Justice Barrett supported the majority’s opinion that houses of worship, under the protection of the First Amendment to the United States Constitution, are exempt from occupancy limits stemming from public health orders. The majority pointed out that businesses within the ‘red’ and ‘orange’ zones were not subject to the same occupancy limits that houses of worship were. The defense, as well as the Court’s minority, countered that similar venues to houses of worship, such as concerts and other large events, faced stricter rules on occupancy.

Previously in May 2020, when former Justice Ginsburg occupied Justice Barrett’s seat, the Court ruled in South Bay United Pentecostal Church v. Newsom that occupancy limits on houses of worship could be issued by the State of California based on the guidance from health experts. Then, the majority argued that churches already were granted more leniency than similar events, such as public events and gathering places. Justice Roberts cast the deciding vote and cited a 1905 Supreme Court Case, which finds applicability today, as it was a case deciding mandatory implementation of smallpox vaccines. Jacobson v. Massachusetts, in pertinent part, provides: 

“There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that, in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” 

The Court, in Jacobson, provided that while individuals are free to protest restrictions implemented by the state according to their protections under the U.S. Constitution, they must, at times, adhere to regulations in order to promote the common good and protect against ‘great dangers.’ A great danger, as Justice Roberts and the majority deciding South Bay Pentecostal Church v. Newsom pronounced, could be expressed as a national or statewide pandemic threatening the public health. This opinion, of course, may be broadly interpreted. Questions still apply to what exactly are ‘great dangers’ or ‘reasonable regulations.’ As Justice Gorsuch would later write in Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, “As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task.” Until Justice Barrett joined the Court, the opinion was that occupancy limits on houses of worship were ‘reasonable regulations,’ being more lenient than comparable venues, which protected against the ‘great dangers’ of COVID-19. Now, as decided by Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, the religious occupancy limits were not ‘reasonable’ when taking into account more lenient limits on businesses. Justice Gorsuch, in his concurring opinion, directly challenged Pentecostal Church v. Newsom, by writing:

“Here, by contrast, 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. Nothing in Jacobson purported to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights. In fact, Jacobson explained that the challenged law survived only because it did not ‘contravene the Constitution of the United States’ or ‘infringe any right granted or secured by that instrument.’ Id., at 25. 

Gorsuch here explains that Jacobson does not apply to Governor Cuomo’s order as Chief Justice Roberts would like it too, as Jacobson did not involve specifically targeting “classifications based on race or on some other ground,” in this case houses of worship. He also added that no Justice would refute the points he made concerning First Amendment protections of religious liberty. This is more evident in Justice Breyer’s written opinion, which provides:

“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.” 

Before the case was decided, Governor Cuomo rescinded restrictions on houses of worship within the ‘orange’ and ‘red’ zones. He then told reporters, “It’s irrelevant from any practical impact because the zone that they were talking about has already been moot…I think that this was really just an opportunity for the court to express its philosophy and politics.” To this rebuke of the Court’s decision, Justice Gorsuch would respond in his opinion, 

“Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So, if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again.”

The Governor, being a lawyer, would understand that Supreme Court judicial decisions set precedents, which form the basis of future decisions. Therefore, Governor Cuomo’s statement that the case is “irrelevant from any practical impact” is, by legal definition, incorrect. 

As Justice Barrett and the Court hear new cases influenced by the upcoming Democratic political leadership in Washington D.C., one can certainly predict that Barrett will stick to conservative principles in acting more or less as a swing vote, replacing Chief Justice Roberts. Recently, she, together with the rest of the Court, declined to hear the Texas lawsuit to overturn election results in several states. The Court cited Texas’ absence of legal standing to challenge other states’ electoral systems. Justice Barrett did not dissent. Justice Barrett, for now, may be observed as a textualist justice who will side with liberals when it comes to procedural issues. Only time will tell how future cases will influence her judicial perspectives. 

Gustavo Alcantar, Legal Intern, J Cruz & Associates, LLC.