In the U.S. Supreme Court’s recent 5-4 decision forbidding New York state from enforcing certain COVID restrictions on houses of worship, Justice Neil Gorsuch comes off as the judicial embodiment of that notorious line from U.S. Sen. Barry Goldwater: “Extremism in defense of liberty is no vice.”

Gorsuch’s seven-page concurrence to the high court’s Thanksgiving-eve ruling in Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo is remarkable both for its truculence and its sarcasm, much of it aimed at Chief Justice John Roberts, who in decisions earlier this year sided with a different majority, one willing to defer to elected officials and public health experts during a pandemic.

But as a consequence of Amy Coney Barrett’s ascension to the Supreme Court following the death of liberal icon Ruth Bader Ginsburg, SCOTUS’s politics have shifted to the right. And Gorsuch, a Trump appointee like Barrett, seems freshly emboldened, ready to push back on all this COVID-inspired secularism.

In a peculiarly personal cris de coeur, Gorsuch notes in his concurrence that in recent months, other governors have issued executive orders similar to Cuomo’s.

“At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples,” he writes. “In far too many places, for far too long, our first freedom has fallen on deaf ears.”

Gorsuch’s religious fervor is fascinating because it seems so unnecessary in light of the court’s unsigned per curiam opinion, whereby SCOTUS’s new conservative majority takes a legal two-by-four to Gov. Cuomo’s famously cocky noggin.

Up to 20 cases involving houses of worship in states including Nevada, New Jersey, California and Oregon could be affected by the Supreme Court’s late Tuesday decision, legal experts say https://t.co/iL7x24XA86 via @WSJ #scotus #realclearcounsel

— Real Clear Counsel (@SCSLawFirm) November 27, 2020

Minus Gorsuch’s sturm und drang, the per curiam opinion spikes the enforcement of state limits on attendance in churches, synagogues and other religious meeting places, for being in violation of the First Amendment’s dictate that “Congress shall make no law respecting an establishment of religion or the free exercise thereof . . .”

Addressing petitions from Brooklyn’s Roman Catholic Diocese and Agudath Israel of America, an umbrella organization for Orthodox Jews, the court’s new conservative majority ruled that the petitioners had been treated more harshly than “essential” businesses under New York state’s color-coded regulatory regime.

As the ruling explains, in a “red zone,” businesses deemed “essential” by the state “may admit as many people as they wish, while religious services are capped at a maximum of ten persons. In an “orange zone,” even non-essential businesses “may decide for themselves how many people to admit” to their premises, while attendance at a house of worship is capped at 25.

NEW: @NYGovCuomo says that the SCOTUS decision, rejecting sharp restrictions on attendance at religious services, are politically motivated and "irrelevant."

First take with @liamstack here: https://t.co/JolbRRNwqj

— Jesse McKinley (@jessemckinley) November 26, 2020

The court found that Cuomo’s regulations were “not neutral” and that worshippers faced “irreparable harm” under them, holding the restrictions to a judicial standard of “strict scrutiny.”

Under that high bar, such rules must be “narrowly tailored” to serve a “compelling” state interest.

Ironically, the Cuomo administration recently relaxed its mandates on the areas where the petitioners are located, reclassifying them to a “yellow zone,” where they can operate at 50 percent capacity. Still, the court rejected the idea that the issue was moot, since Cuomo could change the classification at any time, leaving the litigants out of court until another challenge could be heard.

“[E]ven in a pandemic, the Constitution cannot be put away and forgotten,” the court admonished. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

Gorsuch Attacks

Various news outlets and commentators have given Justice Amy Coney Barrett the glory (or the blame) for this SCOTUS decision.

Though the Trump-appointee’s name appears nowhere on the per curiam, New York Times correspondent Adam Liptak reported that Barrett “cast the decisive vote.” The reporter even quoted one legal scholar as opining that Barrett, a devout Catholic whose religious views became a flash point during her nomination, had been the principle author of the decision.

The U.S. Supreme Court has barred NY Gov. Cuomo from enforcing some restrictions on attending religious services in areas with surging #COVID19 cases.

Amy Coney Barrett sided with conservative justices in the 5-4 ruling.

More than 34,000 people have died from coronavirus in NY. pic.twitter.com/YwhSXl8WlG

— AJ+ (@ajplus) November 26, 2020

Liptak noted that in 2020, while she was still among the living, Ginsburg was part of a different SCOTUS majority that declined to meddle with state COVID restrictions on religious services in Nevada and California.

Writes Liptak:

“The Supreme Court’s membership has changed since then, with Justice Barrett succeeding Justice Ruth Bader Ginsburg, who died in September. The vote in the earlier cases was also 5 to 4, but in the opposite direction, with Chief Justice Roberts joining Justice Ginsburg and the other three members of what was then the court’s four-member liberal wing.”

If Barrett was the quiet swing vote in favor of religious exceptionalism, Gorsuch proved an implacable, Thor-like hammer, pummeling Roberts and the liberal minority, punishing them for past transgressions.

For example, Gorsuch took direct aim at Roberts’ concurrence in a similar case from May, South Bay United Pentecostal Church v. Gavin Newsom, Governor of California.

Therein, Roberts described a traditional judicial hesitancy to interfere with elected officials dealing with a public health crisis.

Chief Justice John Roberts is playing the long game | ⁦@JoanBiskupic⁩ https://t.co/7ynBxtVKT3

— State of the Union (@CNNSotu) November 30, 2020

In the South Bay decision, Roberts explained that the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.”

The Constitution “principally entrusts” the safety and welfare of the citizenry to “the politically accountable officials of the States,” Roberts wrote. Such officials should have broad latitude “to act in areas fraught with medical and scientific uncertainties,” and they “should not be subject to second-guessing” by an unelected judiciary that lacks expertise in public health and “is not accountable to the people.”

However, Gorsuch found Roberts’ opinion in South Bay “mistaken from the start,” while allowing that the court’s decision not to enjoin Newsom’s edicts came in the early stages of the pandemic. But as the nation faced entering “a second calendar year living in the pandemic’s shadow,” Gorsuch deemed Roberts’ rationale to be past its expiration date.

“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch writes, adding that “courts must resume applying the Free Exercise Clause” and with its decision in the Cuomo case, “a majority of the court makes this plain.”

Roberts’ Rules

In Roberts’ dissent, the Chief Justice opines that since the red and orange zones at issue have been lifted, there is “no need” to enjoin the enforcement of the government’s rules.

Brooklyn diocese cheers ruling barring Cuomo's houses of worship limits https://t.co/bM4aBv1MrE via @nypmetro @nypost @BpDiMarzio @BrooklynDiocese

— Brooklyn Diocese Press Office (@BQDiocesePress) November 27, 2020

The regulations might violate the Free Exercise Clause, he concedes, but it was not necessary “to rule on that significant and difficult question at this time.”

He also addressed Gorsuch’s criticism of himself and of fellow Justices Elana Kagan, Sonia Sotomayor and Stephen Breyer, stating that they “simply view the matter differently after careful study and analysis.”

The three “liberal” justices dissented separately from Roberts. Kagan joined Sotomayor in contending that there had been no discrimination against houses of worship.

Instead of comparing the restrictions on churches and synagogues to those on retail establishments, such as liquor stores and bicycle shops, the proper comparison was to those at lecture halls, concerts, sporting events, theaters, etc., according to this minority view.

Sotomayor said these “comparable secular gatherings” are constrained by similar or less severe restrictions than houses of worship.

“Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily,” Sotomayor writes.

High Court Victory for Religious Libertyhttps://t.co/L4VlVX3bAo pic.twitter.com/WW7FREt4v7

— Agudath Israel of America (@AgudahNews) November 26, 2020

Yet, in that “deadly game,” Gorsuch’s voice dominated, as if he were laying down a marker for future court decisions and sending a message that the days of Roberts’ culling together a majority with SCOTUS’s liberal wing are kaput.

Bender Objects

In an interview with Front Page Confidential, Constitutional scholar Paul Bender, a professor of law and dean emeritus for Arizona State University’s Sandra Day O’Connor College of Law, called the court’s ruling regarding the Cuomo regulations, “one of the worst decisions I’ve seen in a long time.”

Bender argued that any harm done by New York state’s regulations to the practice of religion was not irrevocable, nor should the rules be viewed through the prism of “strict scrutiny,” where any limits on Constitutionally-protected activity would have to be “as narrow as possible” to pass muster.

“Postponing a religious ceremony of a certain size or just saying it has to be small rather than large does not strike me as the kind of serious irrevocable injury that ought to stop a government from trying to save lives,” he says.

The professor sees the New York state restrictions as “a modest interference with rights,” and a temporary one at that. It’s not as if the government is seeking to do away with the exercise of religion altogether.

“They can still practice their religion,” Bender says of the litigants. “They can practice it at home. They can practice it in small groups.”

Government must be allowed the flexibility to deal with such issues, Bender contends, because the circumstances of a deadly pandemic, like the one we’re in now, will fluctuate.

“The court’s opinion seems to say, `Hey, whenever you do something that interferes with what a church wants to do, it’s going to be unconstitutional,'” Bender says, calling the situation, “dangerous.”

According to Bender, the ruling may deter government officials from acting to protect the public health. And lower court judges may use the SCOTUS decision to stop governments from doing what’s necessary to save lives.

Bender also found fault with Gorsuch laying down markers in his ruling. The overall “tone” of the majority opinions in the case bothered him.

“You have five people on the court who are willing to elevate their religious beliefs over human life and say, ‘We know better than the governor of New York how to resolve that tension and strike that balance,'” Bender says. “That’s quite unusual.”

For his part, Gov. Cuomo called the ruling “irrelevant from any practical impact,” as the red and orange zones in question had been downgraded to yellow.

Though the order would prevent Cuomo from enforcing the more stringent rules against religious gatherings, if the yellow zones are reclassified to more severe categories.

SCOTUS’s injunction is not permanent, at least not yet. It awaits the result of pending litigation before the Second Circuit Court of Appeals, which has scheduled a hearing for December 18 in the case.

And ICYMI, please see these recent FPC stories:
Judge Calls “Bollocks” on Cali’s Rules for Vanity License Plates
and
Lacey and Larkin Ask Ninth Circuit to Order Judge Brnovich’s Recusal