On Friday night, in a move that has become all too familiar, the Supreme Court blocked a ban on church services in Santa Clara County, California—the latest in a line of shadow docket decisions limiting state and local COVID-19 restrictions on religious worship. The court’s brief, unsigned order was apparently decided by a 6–3 vote, with all three liberals dissenting. It contained exactly one sentence of legal analysis: “This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom.”
But what, exactly, was that decision? In South Bay, decided in February, the Supreme Court blocked California’s statewide ban on church services in COVID hot spots—again, by a 6–3 vote—but did not explain why. There was no majority opinion revealing the court’s reasoning, as there usually is when the court makes law. Instead, four justices wrote separate concurring opinions proffering their own preferred theories of the case, with various others joining in. Yet in Friday’s order, the Supreme Court insisted that this confusing, scattershot patchwork of opinions “clearly” rendered Santa Clara County’s regulation unconstitutional. Even though no one knows what the court actually held in South Bay. Even though Santa Clara County’s rule differed from California’s broader regulations in fundamental ways. And even though the most plausible interpretation of SCOTUS’s recent COVID decisions suggests that the conservative justices have quietly overruled precedent that, in theory, still remains binding on the lower courts and requires them to uphold laws that place only incidental, nondiscriminatory burdens on religion.
What are state and local officials attempting to fight the deadliest pandemic in a century supposed to do with this sprawling mess? Can they craft any public health restriction on religious services that will hold up to this court’s scrutiny? The Supreme Court’s COVID jurisprudence might be incoherent, but its underlying message is relatively clear: Religious exercise now gets special benefits above and beyond all other First Amendment activities. Why? We don’t really know.
Without issuing any signed opinions of the court, SCOTUS has revolutionized the constitutional law of religious freedom. Thanks in large part to Justice Amy Coney Barrett tipping the balance, the court has elevated religion to the top of its constitutional hierarchy, at the expense of government authority to fight a deadly virus and the public’s right to basic health protections.
The Supreme Court’s COVID doctrine can be neatly divided into two categories, and those categories are temporal, not logical: those decisions issued when Justice Ruth Bader Ginsburg sat on the court, and those issued after Barrett replaced her. In the pre-Barrett COVID cases, the high court turned away challenges to state restrictions on indoor religious services, deferring to the judgment of democratically elected lawmakers. This approach squared with the court’s long-standing approach to public health emergencies as well as its decision in 1990’s Employment Division v. Smith, which upheld burdens on free exercise that stemmed from religiously neutral laws. The court’s position through the first half of the pandemic was consistent and cogent: States could restrict worship services so long as they restricted comparable secular activities, like plays, and did not single out religion for disfavored treatment.
After Barrett joined the court, everything changed. First, she cast the decisive fifth vote to block a New York restriction on indoor religious services in November, complaining that the state let more people go to secular businesses than houses of worship. But as Justice Sonia Sotomayor noted in dissent, it made no sense to compare churches, where people congregate and communicate indoors for lengthy periods of time, to secular businesses like supermarkets, where they do not. The proper comparison would have been secular activities like plays and concerts—and New York actually gave religious gatherings more leeway than these comparable secular events. Under Employment Division v. Smith, the case was not remotely a close call: New York was not merely neutral to religion, but generous to it.
Then, in February’s South Bay decision, the majority doubled down, blocking California’s statewide worship ban just as a new variant of the virus swept across the state. Because the court didn’t explain its logic, we can only guess why it found this ban unconstitutional. Chief Justice John Roberts, who had voted with the liberal wing of the court over the spring and summer, suddenly switched his position and now considered the burden on religion too severe to justify, in a rationale that does not even pretend to adhere to Smith. Justice Neil Gorsuch’s opinion, meanwhile, suggested that California had unlawfully targeted churches by assigning them “their own row” in the state’s “spreadsheet summarizing its pandemic rules” and by allowing retail stores to remain open.
Even under Gorsuch’s ultrastrict standard, however, Santa Clara County’s worship regulations should be constitutional. Unlike California, Santa Clara County did not place churches in their own distinct category when setting COVID rules. It also went out of its way to apply its regulations equally to religious and secular activities. No longer could churches be compared to Nevada casinos or New York bike shops that were subject to lesser regulation. The county decisively barred public “gatherings” across the board, no matter where they took place. Churches could open their doors to individuals wishing to pray or “seek spiritual guidance,” just as bookstores could open their doors to readers wishing to buy a book or discuss new releases with an employee. But churches could not allow group worship services, just as bookstores could not allow book readings. Religious and secular activities were now being treated exactly the same. But the majority declined to address the new regulations, sweeping them away under the same (still unknowable) theory of South Bay. These cases are the same, they asserted. Move along.
Maybe one way to think about it is this: The law by necessity operates by way of analogy. Courts liken one set of facts to another and try to create rules that apply neutrally across different situations with similar circumstances. But the decisions in these cases themselves must operate based on their similarities to the cases that came before. This growing soup of COVID cases massed on the shadow docket fails on both fronts. For one thing, the court continues to treat COVID restrictions that apply neutral rules to everyone as though they’re somehow singling out religious entities for abuse.
This substantive error is compounded by a procedural one: By insisting that cases that are fundamentally different are exactly the same and that the resolution is “clearly dictated” by the earlier order, the court extends the fiction that it created a coherent rule in the first instance. Without any analysis or explanation, the majority are deciding new cases with the breezy claim that the brief unsigned order in a prior case quite obviously demands the briefer unsigned order in this next one.
This is doctrine built of vapors. There’s no road map, just the shrugging sense that this is all perfectly obvious to all and sundry. And the fact that each of these cases is rushed through as an “emergency”—despite the fact that the Santa Clara regulation, like those in some previous cases, was poised to expire in days or weeks—means that religious liberty exists in a persistent state of exigent crisis. The justices, under this guise of emergency, don’t explain, and the rest of us are denied the benefit of full briefing, oral arguments, and careful deliberation. SCOTUS will never admit that it values free exercise above all other rights, but it demonstrates its favoritism by fast-tracking religion cases to the detriment of orderly judicial process.
The result of all this isn’t merely the absence of institutional transparency or the inability to build an enduring or coherent doctrine to apply in future cases. Public health officials and lower court judges alike are inevitably chilled by the prospect of future rulings casting aside their best efforts to balance pandemic health regulations against constitutional freedoms. Their impulse will be to stop trying because they will reasonably conclude that they no longer have a fair shot at persuading SCOTUS. And who can blame them? Making law without providing a reasoned explanation isn’t judging. It’s exercising raw power without bothering to provide a pretense.
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