Recent news about the coronavirus pandemic has been alarming. Despite President Donald Trump’s claims that the virus would miraculously disappear or that it could be defeated with light and bleach, cases are on the upswing. More than a quarter of a million Americans have died, and the virus is now rampaging through Midwestern and Plains states and overwhelming rural areas.
The U.S. Supreme Court may be about to make things worse: Houses of worship and religious groups have asked the court to exempt them from state orders curbing large gatherings.
As we’ve noted several times on this blog, the vast majority of religious leaders in America are doing their part to combat the virus by moving services online or outside, or by finding other creative ways to avoid bringing large congregations together in person or to at least substantially limit the size of such meetings. But a noisy minority continues to insist that they should have the right to hold in-person services that don’t comply with their states’ restrictions on large gatherings – even though those restrictions apply to all large gatherings, religious and secular alike.
In two New York lawsuits, the Catholic Diocese of Brooklyn and several ultra-Orthodox Jewish groups are asking the Supreme Court to grant them an emergency order allowing them to evade restrictions put in place by state officials. And late last night, an evangelical Protestant church in Louisiana also requested that the justices grant an exemption to that state’s public health order. The Louisiana church is pastored by Tony Spell, an outspoken scofflaw of COVID public health orders, and represented by former Alabama Supreme Court justice Roy Moore’s Religious Right legal organization.
This issue has reached the high court twice before. By 5-4 votes in May and July, the court declined to grant emergency injunctions to houses of worship seeking exemptions from public health orders in California and Nevada.
The Supreme Court has changed since then. Justice Ruth Bader Ginsburg died Sept. 18 and has been replaced by Justice Amy Coney Barrett. Ginsburg understood that granting special privileges to religious groups during a pandemic would violate church-state separation and jeopardize public health. There’s reason to believe that Barrett, who is much more conservative, may not see it that way. As a judge on the 7th U.S. Circuit Court of Appeals, Barrett joined a September opinion that allowed Illinois to exempt religious services from the state’s public health order, though that opinion did not address whether officials were required to do so.
Americans United and its allies have filed briefs in the Supreme Court in the two New York cases. AU acknowledges that these are difficult times but argues that the U.S. Constitution does not prohibit New York from including houses of worship and religious services in temporary restrictions on large, in-person gatherings. We assert that it would be harmful to the public to exempt religious gatherings from the order.
The Supreme Court may rule on this matter as early as tomorrow. We can only hope that our argument resonates at the court. In light of the resurgence of the virus, this would be exactly the wrong time for the justices to extend preferential treatment to religious groups by allowing them to ignore bans on large gatherings.
No one likes the current restrictions, but they are based on sound science and are designed to keep us safe. The high court should uphold them.
The briefs AU filed in the New York cases mark the 39th and 40th such briefs we’ve filed in similar cases nationwide. We’ll continue to urge courts to protect both religious freedom and public health by treating religious and secular gatherings the same. Join us to support our work.