On one level, it’s easy to summarize the Supreme Court’s about-face on the conflict between COVID-19 regulations and houses of worship. Before Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg, the Court twice upheld restrictions on religious gatherings. Afterward, the Court twice overturned them.
So, sure: Before Barrett, the churches lose, but after Barrett, the churches win.
Yet the inexplicably sloppy way in which the Court’s conservatives have written about these cases reveals something much more troubling: a seeming inability to separate legal and scientific reality from Christian nationalist conspiracy theories about the “war on religion.”
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The first religion-and-COVID case that the Court decided was South Bay United Pentecostal Church v. Newsom, handed down on May 29, 2020. (Strictly speaking, none of these four cases were “decisions” since all had to do with injunctions and stays of state rules. But since the pandemic has evolved so quickly and so many times, these “temporary” decisions are likely all we’re going to have.) That case concerned California’s restrictions capping indoor religious services at 25 percent capacity or 100 people, whichever was lower.
The Court voted 5-4 to allow the restrictions to take effect. The (then) four liberals didn’t issue an opinion, but Chief Justice John Roberts, the swing vote, said that this was a close case, and it was not “indisputably clear” that the rules were unconstitutional, which is the standard for an injunction against them.
Justice Brett Kavanaugh, joined by Justices Neil Gorsuch and Clarence Thomas, made two critical errors that recur in all four cases, writing that “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses.” The first mistake is the word “discriminate,” which implies an invidious, perhaps bigoted motive—more on that in a moment.
The more subtle, but more determinative, mistake is the word “comparable.” The businesses Kavanaugh listed were “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” As we’ll see in the other cases, the trouble is that none of those businesses actually are comparable when it comes to the spread of COVID-19.
In most of them, customers flit in and out; few spend more than 15 minutes in the presence of others, which is what public health experts say causes the greatest risk. South Bay Pentecostal’s services, on the other hand, run 90 minutes. And even in factories, hair salons and offices, where people do spend prolonged periods of time, few of them sing, dance, shout, and socialize with large groups of people, as do attendees at South Bay Pentecostal; nor do preachers preach (unmasked) for 30-45 minutes. So these businesses are not “comparable” at all.
The trouble is, as soon as Kavanaugh blithely equates a church with a bookstore, then either the two must be treated equally (in legal parlance, the rules must be “neutral and of general applicability”) or else the government is discriminating against the church, which can only be justified if the restriction is narrowly tailored to advance a compelling state interest–which basically means never.
But a church isn’t like a bookstore! That’s the whole point. Nowhere does Kavanaugh engage with the distinctive activities that take place in churches, mosques, and synagogues; he simply says the secular businesses are “comparable.” Which, as Justice Sotomayor would write in a dissent a few months later, they are clearly not. It is impossible “to square [secular] examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.”
Indeed, churches are so conducive to spreading COVID that one study found that 35 out of 92 of people who attended an Arkansas church between March 6-8, 2020, caught COVID from just two infected fellow congregants. Three died. Wonderful things happen in houses of worship, but from an epidemiological point of view, they are uniquely suited to spreading COVID-19.
The same elision was made in the second case, Calvary Chapel Dayton Valley v. Sisolak, decided on July 24, 2020. Here, it was (no surprise) casinos and entertainment venues that were treated more favorably than houses of worship. The Court upheld the rules 5-4, without issuing an opinion. “In Nevada, it seems, it is better to be in entertainment than religion,” wrote Gorsuch bitterly.
Only, once again, from an epidemiological point of view, casinos and movie theaters are different from churches. Casinos, admittedly, are a closer case, and obviously their exemption was politically and economically motivated. But one unjustified exemption does not make another one constitutionally required, and even in casinos, there’s still not the level of singing, preaching, and gathering with fellow congregants, and casinos tend to be large and well-ventilated. So despite Gorsuch’s well-played bon mot that “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel,” in fact, Nevada is doing no such thing. It is treating different situations differently.
Same again in the third case, Roman Catholic Diocese of Brooklyn v. Cuomo. That case was decided Nov. 25, 2020, and was decided 5-4 in favor of the Church, now that Justice Barrett replaced the late Justice Ginsburg (for a day or two, the hashtag #amyCOVIDbarrett was trending on Twitter). The result was the opposite of the earlier cases, but the conservative justices’ mistake was the same: “[The First] Amendment prohibits government officials from treating religious exercises worse than comparable secular activities,” wrote Gorsuch.
What activities? Going to “hardware stores, acupuncturists, and liquor stores” as well as “bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents.” But at which of those activities does one pray out loud for three hours, as one does in the Orthodox synagogues, which joined the Diocese in the lawsuit and which were the primary reason for the regulations?
Now, the New York rules were indeed somewhat egregious: strict numerical limits despite the size of the church, which really don’t make much sense in a huge cathedral. But everyone knows that those rules were put in place because Ultra-Orthodox communities were brazenly flaunting all COVID rules, packing into tiny synagogues with poor ventilation, and attending mass indoor weddings, funerals, and other gatherings. The diocese was just caught in the geographical net. And the rules only applied to “red zones” where infection rates were extremely high—so high, in fact, that at the time the case was decided, there were no red zones.
But regardless of their merits, the New York rules were not “discriminating.” They were based on the kinds of COVID-related activities that happen in different places.
Finally, sensing the winds had changed, the Becket Fund and other religious-fundamentalist organizations representing South Bay United Pentecostal Church returned to the Supreme Court, and got their wishes on Feb. 5, 2021: This time, California’s rules were mostly thrown out.
Yet again, Gorsuch issued a sweeping statement full of linguistic gesticulations and unjustified hyperbole: “When a State so obviously targets religion for differential treatment, our job becomes that much clearer.” Unlike in past cases, Gorsuch did engage with the four reasons California offered for why churches are different from hairstylists, manicurists, and bus terminals (his examples). But he treated them as four separate inquiries, when the whole point is that “religious exercises involve (1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing” all at the same time.
So, Gorsuch wrote, people from different households mix at the train station; they wait in line at the store; and they might stay at the mall for hours. Yes, but the point is that a church is all of these combined. Which is what makes houses of worship uniquely dangerous from a COVID-19 perspective, and unlike all of the other examples that he gives.
Moreover, the kind of in-depth scrutiny Gorsuch insists upon only applies, again, when the state is “discriminating” against religion. But that is the question of the case, not its premise. California does not have to explain “how a total ban on religious singing is narrowly tailored to its legitimate public health concerns,” because that is only the standard when a law isn’t neutral toward religion. Here, it is neutral, because these religious activities are not like the other examples Gorsuch brings up. Indeed, Gorsuch didn’t mention the one thing that they do resemble—indoor sporting events—perhaps because it doesn’t suit his argument, since they’re restricted just like indoor religious services are.
Gorsuch’s opinion is specious reasoning, circular argument, and insufferable hand-wringing all wrapped up in one. And just like California’s four-factor analysis, the whole is greater than the sum of its parts.
Now, Gorsuch is not a fool. And after four similar cases, surely the Court’s conservatives understand everything I’ve laid out here. So, to paraphrase our last president, what the hell is going on?
The key is the word “discriminate.” All five of the Court’s religious conservatives—here counting Barrett—have written and spoken about the “war on religion” that they perceive to be taking place, a war that is consistently framed in theological terms as a battle between good and evil. (This was how former Attorney General William Barr framed it as well.) That narrative is as false as any of the right’s other conspiracy theories, yet it has captured the minds of these five justices. And so they have consistently elided the distinction between treating unlike cases differently on the one hand, and invidious discrimination on the other.
Justice Samuel Alito was perhaps the most outspoken of all of them in a speech given last year at the Federalist Society (whose leadership, incidentally, played a significant role in the Jan. 6 insurrection) when he complained that “the pandemic has resulted in previously unimaginable restrictions on individual liberty” and, for good measure, lied about the Little Sisters of the Poor being “targeted” by the Obama administration, when in fact it was right-wing activist lawyers who sought them out and used them as poster children to weaken the Affordable Care Act.
Alito said the Nevada and California rules “blatantly discriminated against houses of worship” and joked that “you will see the Free Exercise Clause of the First Amendment which protects religious liberty, [but] you will not find a craps clause or a blackjack clause or a slot machine clause.” Ha ha ha. Only, from the perspective of the virus, the church is indeed more dangerous than the casino.
For decades now, right-wing Christians have insisted that religious people are being discriminated against, that there is a war on religion, that religious liberty is under attack. None of this is true. There are no secret minutes of an ACLU-Obama-Biden meeting to destroy Christianity. There are no gay cake bakers refusing to serve Christian customers, and no gay “therapists” subjecting Christians to abusive, disproven “conversion therapy.” Nor were there were any rabid secularists in the Cuomo administration trying to undermine Catholicism (which, of course, the governor himself professes). Indeed, while Christianity is on the wane in America, it is mostly being destroyed by demographics, as millennials and Gen-Z abandon organized religion at unprecedented rates.
But rather than face these facts and attempt to address them honestly, the religious right has—like the Trumpists, with whom they often overlap—preferred to blame some external enemy, a malevolent force attacking religion and America. Sometimes that manifests in the pervasive displays of Christian Nationalism on Jan. 6, and sometimes it manifests in inexplicable lapses of reasoning among Supreme Court justices who were handpicked by religious fundamentalists to turn our country rightward.
Having drunk this preposterous Kool-Aid for decades, these justices appear to have digested it. States’ appropriately dissimilar treatment of houses of worship in the context of fighting a contagious airborne illness triggers their confirmation biases that there is a malevolent war against Christianity, with churches being “targeted” (by whom?) for discrimination. Surely it seems simpler to understand that governments are following the advice of scientists and regulating different activities differently. But that wouldn’t fit the convoluted and baseless meta-narrative that Christianity is under attack by sinister, malevolent forces. It would merely be true.
