COVID-19 Restrictions Are Suddenly in Peril at the Supreme Court

Amy Coney Barrett now has an opportunity to cast the fifth vote freeing churches from public health restrictions.

Donald Trump and Amy Coney Barrett stand on the White House balcony, engaged in a lively conversation.
Donald Trump and Amy Coney Barrett speak during a ceremonial swearing-in ceremony at the White House last month. Alex Wong/Getty Images

Since the start of the pandemic, religious institutions have repeatedly gone to court seeking to block public health restrictions that limit attendance at houses of worship. On two occasions, the Supreme Court has rejected these efforts—albeit by a 5–4 vote, with Chief Justice John Roberts joining the liberals. Ruth Bader Ginsburg’s death and Amy Coney Barrett’s confirmation raised the possibility that the court could change its tune. There may now be a five-justice majority ready to suspend COVID-19 limits on church attendance, even as infection and hospitalization levels reach new heights across the country.

On Thursday, the Roman Catholic Diocese of Brooklyn decided to test the waters, asking SCOTUS to abolish attendance caps at 26 churches in New York City’s COVID hot spots. The diocese pointed out that the current restrictions were designed to stop rampant spread in New York City’s ultra-Orthodox communities, and that its own churches have promised to wear masks, practice social distancing, and remain at 25 percent capacity. It also asserted that, under the First Amendment, churches should face the same limits as secular businesses, which are allowed to operate at a higher capacity in New York.

The diocese’s complaint of religious discrimination is not new. In May, a church in California brought a similar challenge to the Supreme Court. It alleged that the state had violated the First Amendment’s free exercise clause by placing stricter limits on houses of worship than on secular businesses like grocery stores. Roberts, joined by the liberals, turned away the church’s challenge. The chief justice declared that states have broad leeway to limit individual liberty during a health crisis and their decisions should “not be subject to second-guessing by an unelected federal judiciary.” The four other conservatives dissented. In July, a Nevada church contested its own state’s restrictions on church attendance. Once again, Roberts joined the four liberals to uphold the state’s public health policies, while his four conservative colleagues dissented.

Why, then, does the Roman Catholic Diocese of Brooklyn think it’ll have better luck? In its petition to the court, the diocese argued that we know more about COVID now than we did a few months ago. SCOTUS upheld California’s restrictions “during the early days of the pandemic,” the diocese wrote, “when there was widespread confusion about how COVID-19 is transmitted and the practices necessary to combat its spread.” Today, “circumstances have evolved,” and because we have a better understanding of the virus, judges should feel more comfortable overruling public health officials.

This argument studiously avoids stating what’s actually changed since July: Barrett, unlike her predecessor, will vote to knock down COVID restrictions. Ginsburg was a skeptic of “religious liberty” claims that sought to exempt religious individuals and institutions from laws that apply to everybody else. By contrast, Barrett is universally regarded as an ally of religious groups that request exemptions from the law. Indeed, her supporters in the White House and Senate continually praised her commitment to religious liberty, a phrase that now signals support for privileging religion over the rights of others. At her nomination ceremony, Donald Trump stated that Barrett’s confirmation was critical to “the survival” of “our religious freedom.”

In the California and Nevada cases, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh expressed their fervent desire to free houses of worship from COVID restrictions. The diocese almost certainly believes that Barrett will provide the fifth vote to lift these limitations. There’s no clear reason to think that Barrett will buck these expectations. After all, when Roberts upheld Nevada’s COVID policies, Trump telegraphed his disapproval in a tweet suggesting that, if reelected, he would appoint more conservatives who’d vote against COVID rules. Mike Pence also called Roberts “a disappointment to conservatives” in light of the Nevada decision. It seems improbable that Trump and Pence would replace Ginsburg with a justice who sided with this “disappointment.”

If the Supreme Court takes up this latest invitation to block New York’s COVID policies, it may well exacerbate the current coronavirus surge in New York City. The executive order in question divides the city into different zones based on COVID rates; red and orange zones are experiencing the highest number of “cluster-based cases” of the disease. In red zones, houses of worship are limited to either 25 percent of maximum capacity or 10 people, whichever is fewer. In orange zones, they’re limited to “the lesser of 33% of maximum occupancy or 25 people.” The diocese operates at least 26 churches in red and orange zones. If SCOTUS grants its request, churches in the city’s hardest hit areas will resume holding services with a large number of people indoors singing and praying together. (Gov. Andrew Cuomo could issue a narrower substitute order, though that, too, might get challenged.)

The damage would quickly radiate beyond New York City. A decision for the diocese would also encourage religious organizations in other states to petition SCOTUS for relief—as infections, hospitalizations, and deaths from COVID spike throughout the country. The diocese has promised to follow reasonable safety protocols, but other houses of worship might not be so responsible. In the early days of the pandemic, scientists discovered that church services can easily become superspreader events; some of the worst outbreaks have been traced to houses of worship. Now the Supreme Court could thwart state efforts to avoid such events as the U.S. faces the darkest days of the pandemic yet.

Barrett’s own nomination ceremony was very likely a superspreader event. It would be grimly ironic if her first major vote facilitates more such public health catastrophes.