5 Thoughts on ‘Brooklyn Diocese v. Cuomo’

The court majority is restoring the full vigor of the first right in the First Amendment after a protracted period of anemia.

LEFT: Brooklyn Bishop Nicholas DiMarzio in 2012 [U.S. Army Photo by Staff Sgt. Teddy Wade/Released]. RIGHT: New York Governor Andrew Cuomo in 2019 [CC BY 2.0/Chris Rank for Rank Studios/Flickr/Wikimedia Commons].
LEFT: Brooklyn Bishop Nicholas DiMarzio in 2012 [U.S. Army Photo by Staff Sgt. Teddy Wade/Released]. RIGHT: New York Governor Andrew Cuomo in 2019 [CC BY 2.0/Chris Rank for Rank Studios/Flickr/Wikimedia Commons]. )

First, the U.S. Supreme Court was asked whether to grant an injunction against enforcement of Gov. Andrew Cuomo’s orders setting quotas on attendance at religious worship in certain areas to 10 or 25 people. Parties seek injunctions when they believe they would suffer “irreparable harm” to their constitutional rights if a rule or law remains in force while the state defends it in court. The court granted the injunction (i.e., stopped enforcement of the rule) pending trial, indicating the court thinks the plaintiff bringing suit will win. The Supreme Court split 5-4.

The majority notes that, under the governor’s order, a church or synagogue could be limited to the Cuomo minyan of 10 righteous men while an acupuncturist working next door faces no such caps. Churches in the Northeast U.S. are often in mixed-use neighborhoods, indicative of Catholic immigrants who built them living, working and praying in the same area. Under Cuomo’s rules, a church at 100 Smith Street might be restricted to 10 worshippers, but the building at 102 Smith Street housing a chemical plant would be free to bring in as many people as it likes. The court’s majority said the Cuomo rules “single out houses of worship for especially harsh treatment.”

Second, as the late Father Richard Neuhaus unceasingly noted, the very first right mentioned in the very First Amendment of the U.S. Constitution is free exercise of religion. The Constitution is not a “wish list” or declaration of “aspirations.” It is law. Given the centrality of that right, any state infringement on it must show itself to be related to a critical public purpose (like public health) AND that the connection between the restriction and the right restricted is clear and unmistaken (not asserted, not claimed, not believed, but proved), the burden of proof being on the state AND that there is no less coercive way of accomplishing this goal. 

Third, combatting a pandemic is a legitimate and critical public purpose. But where is the “scientific evidence” that religious institutions are any more responsible for being “super spreaders” than the other institutions that face far less onerous limits? Remember, we are talking about trespassing on a constitutionally guaranteed right. That proof needs to be substantial (not just anecdotal) and empirically verifiable. One of the key distinctions between the majority and minority in this case is the deference the minority is willing to give the state: They seem to accept the state’s claims at face value, without demanding New York demonstrably prove its case and the way that it frames the situation. New York tries to get away with saying that “well, grocery store and chemical plants are ‘essential’ but theaters aren’t and the latter are closed, so we are actually treating houses of worship more indulgently.” 

The minority would let New York get away with that characterization without challenge; the majority did not simply buy into the way of framing the picture in the Cuomo shell game. The way Cuomo painted the picture reminds me a little of Alasdair McIntyre’s characterization of Immanuel Kant’s categorical imperative (the ethical rule that a norm should not be binding unless you can make it universally applicable): Kant never stopped anybody except those insufficiently creative enough to reframe the picture to build in the exceptions he wants. 

Note that, in order to get away with its argument, New York implicitly has to say that religious worship is a “non-essential” activity. Knowing it could not say that openly without being more exposed to a judicial smackdown, the state tries to recast the picture by simply calling them indoor activities, a Potemkin Village that collapses when you ask why indoor activities in the acupuncturist’s office are not capped. 

For folks professing to “believe in science” (and I didn’t think science was a matter of faith) I don’t see compelling scientific data — and it should be compelling (not even just suggestive) to violate a first-order constitutional right.

On the question of whether there is a less coercive way of doing this, there is: deferring to individuals’ good judgment. That hasn’t been proven faulty and, in the probability risk calculus that public policy on COVID necessarily involves, it is no more unreliable a measure than the state’s more coercive quota rules. 

Fourth, reading the various opinions, one sees a 5-3-1 split. Three justices (Breyer, Kagan, Sotomayor) would give sweeping deference to New York. The new majority (Thomas, Alito, Gorsuch, Kavanaugh, Barrett) would not. As usual, Chief Justice Roberts wants to play both sides of the fence. He suggests maybe the New York rules are too extensive but he wants a procedural out: There’s no need to rule on them now, because New York just adjusted the rules (much like New York City kept adjusting its gun ownership law to keep it out of Supreme Court review recently) so the churches should try out the new regulations first and maybe come back later if they pinched too much. 

One suspects that Roberts may again be playing his “institutional reputation credibility” card, though one wonders whether what he thinks is the court’s institutional credibility isn’t really his own creds with the elite chattering classes. The majority says clearly “there is no reason [the religious parties] should bear the risk of suffering further irreparable harm in the event of another reclassification.” In other words, states shouldn’t be allowed to drag cases through federal courts ad infinitum based on technicalities. That might be an important idea in case the Little Sisters get sued again.

The court majority is restoring the full vigor of the first right in the First Amendment after a protracted period of anemia. If one doubts that, just ask: if a state came into court with regulations that “burdened” abortion access in the way New York impairs access to your local church or synagogue, how long do you think it would take for a federal judge to strike down that law? Even Roberts’ feigned “standing” question — whether the parties really had a case or should wait to see if modifications to the N.Y. rules still violated their rights — was certainly not applied with the same rigor when Louisiana challenged the supposed impartial “standing” of abortionists to sue against medical practice standards in the name of their patients (where there was clearly a potential conflict-of-interest in the least) last summer in June Medical Services v. Russo. Religious freedom is a right clearly spelled out in the Constitution; abortion is far more a judicial invention (unless Congress gets away with “codifying” Roe v. Wade into federal law).

Fifth, this decision fittingly came on Thanksgiving. Four hundred years ago, a minority sect of Protestant Puritans disapproved by Anglican England landed off Massachusetts in the name of religious freedom. Religious liberty was one of the critical founding motivations for the United States. The court began the process of restoring that principle on an auspicious day.

It’s also an opportunity for giving thanks: for religious liberty; for the successful confirmation of Justice Barrett; for the president courageous enough to nominate her; and for Senate Majority Leader Mitch McConnell for making it happen. All the more reason to keep eyes on Georgia in January.