Amy Coney Barrett’s Supreme Court nomination hearings kicked off yesterday with a barrage of statements from senators on the Judiciary Committee and a statement from Barrett herself.
We heard a lot of talk about Barrett’s conservative Catholic faith – but it all came from Republicans on the committee who are determined to push the false narrative that Barrett is under fire for her religious beliefs. She’s not. As Americans United has noted, Barrett’s record – not her religion – is the issue here.
That record is troubling in several respects. As we noted on this blog yesterday, AU has several questions we’d like to hear Barrett answer. All of them are important, but one question stands out in particular right now because of the possibility of a rapid shift in high court policy: whether houses of worship must abide by broadly based public health orders that ban or curb large indoor gatherings.
Since the beginning of the coronavirus pandemic, most religious leaders have done the responsible thing and canceled services or moved them online. But a small minority, aided by aggressive Christian nationalist legal groups, has resisted and fought public health orders in court – even though several houses of worship have been the sites of superspreader events. They’ve lost most of the cases they’ve filed, but they keep bombarding the courts with new lawsuits. (Most of the opposition to public health orders is led by conservative evangelical churches, but that’s not always the case. In Brooklyn, ultra-Orthodox Jews are resisting new orders from Gov. Andrew Cuomo designed to contain several virus hotspots in the state.)
The U.S. Supreme Court has twice refused to issue emergency injunctions nullifying public health orders as applied to houses of worship. But those were both 5-4 rulings and came before the death of Justice Ruth Bader Ginsburg.
Two justices – Samuel A. Alito and Clarence M. Thomas – are clearly eager to make it harder, if not impossible, for state officials to apply orders limiting large gatherings to houses of worship. In a recent court action dealing with reproductive rights, the two bemoaned that during the pandemic, “The free exercise of religion also has suffered previously unimaginable restraints, and this court has stood by while that has occurred.”
Despite President Donald Trump’s constant claims that the virus will somehow magically disappear, sensible people know that’s not going to happen. The U.S. death rate now tops 215,000, and several states are grappling with fresh outbreaks.
No one likes living under these restrictions, but as long as public health orders treat religious and secular events alike, they are constitutional. The Supreme Court understands that right now. Adding Barrett to the court may change that. If she joins other conservative justices in ruling that houses of worship must be given special exemptions from health orders designed to protect us all, that won’t just violate the principle of church-state separation, it will put the health and well-being of all Americans at risk.