The Supreme Cult has continued its attack on the underpinnings of democracy in this just finished session. We dodged a fatal bullet in the “independent legislature” nonsense and got unexpected positive rulings in the Indian Child Welfare Act and gerrymandering cases.
But we got the expected negative rulings on affirmative action and student debt. Two religious privilege cases were on the agenda, and both gave special privileges to those who claim religion as an excuse to harm other people.
In Groff v. DeJoy a rural postal carrier argued that he should be able to take all Sundays off because of his religious practice as an evangelical. To allow him to do so meant that other employees would be forced to take Sunday shifts to cover for him.
A written agreement outlined how employees are chosen to work on Sunday to deliver Amazon packages. He fell into the third category of employees compelled to work on a rotating basis.
To accommodate him, others — including the postmaster who normally did not deliver mail — did the work or it was assigned to the regional hub for other carriers. Several grumbled; one filed a written complaint. Groff received progressive discipline for failing to work and then in 2019 he resigned.
The laws against abortion that include a “fetal heartbeat” provision defy science, religion, and the law. There is no fetal tissue, no heart, and no heartbeat at the early stages of pregnancy to which these laws apply. Women are being forced to carry pregnancies based on a scientific lie.
No religious or societal consensus exists on when life begins or whether abortion is an allowable health choice. Women are forced to carry pregnancies based on the beliefs of one religion. Basing a law solely on the beliefs of one religion violates the Establishment Clause of the Constitution, because it cements into law the belief of that one religion that is contrary to the beliefs of many other religions and nonreligious people. It also violates the Free Exercise clause of the Constitution because people of any other religion or none are prohibited from practicing their religion as they see fit.
by Adriana Lujan-Flores, Secular Communities for AZ Legal Intern
On November 25, 2020, the U.S. Supreme Court ruled to stop New York Governor Andrew Cuomo from limiting church capacity in areas with high concentrations of COVID-19 cases. Executive Order 202.68 imposed a 10-person occupancy limit on “red zones” and a 25-person occupancy limit on “orange zones”— areas determined to be hot spots for the deadly virus. The 5-4 decision ruled that Cuomo’s executive order violated the free exercise clause of the First Amendment by allowing certain essential businesses (such as shops and laundromats) to operate with a higher occupancy than religious organizations.
The majority opinion insists that there is no reason to assume that churches and synagogues are more dangerous than other businesses, and that attending religious services from home is “not the same as personal attendance.” Justice Gorsuch’s concurrence belabors the point by repeatedly claiming that allowing liquor stores and bike shops to operate at a different standard from churches and synagogues is “treating religious exercises worse than comparable secular activities.”
However, liquor stores and bike shops are in no way comparable to churches and synagogues. As Justice Sotomayor points out in her dissent, people do not gather in large groups for over an hour in stores the way they do in houses of worship. Furthermore, Cuomo’s executive order actually treated religious organizations more favorably than comparable secular events such as concerts and cinemas, which have been closed entirely.
In fact, the only reason the order even mentions houses of worship is to give churches preferential treatment by allowing them to be open to the public at all. Sotomayor also points out the Court’s hypocrisy in considering applying heightened scrutiny to this case, but not to the President’s “Muslim ban” in Trump v. Hawaii,which prevented Muslims from certain countries from entering the United States.
The free exercise clause of the First Amendment prevents the government from prohibiting the exercise of religion. However, the right to freedom of religion doesn’t give every religious group a free pass to ignore the law. Courts have upheld legislation that burdens the free exercise of religion if there is some threat to public safety, peace, or order. Restrictions on large gatherings during a pandemic are intended to protect the public from a deadly virus that spreads through close contact from person to person.
Justice Breyer notes in his dissent that the uncertain nature of COVID-19 creates a strong argument for the state to take actions to curb the risk of spread. But the majority of the Court rejects this as a compelling reason to restrict church capacities — essentially ignoring warnings from public health experts — because there is not evidence that these specific churches have already increased the spread of COVID-19. The court seems to suggest a reactive approach to the pandemic by not allowing local governments to take preventive measures until it is too late.
Three weeks after the opinion in Roman Catholic Diocese of Brooklyn v. Cuomo was issued, the country is already seeing the decision’s effects. On December 15, the Supreme Court accepted an appeal from a Colorado church fighting a 50-person occupancy limit, despite the fact that the restriction had already been lifted by the governor. On the same day, the Court granted a similar appeal by a New Jersey church. Both cases relied on the precedent set in Cuomo’s case, and it is likely that other organizations will use the case to fight pandemic-related restrictions going forward.
Notably, the 10-25-person capacity limitations were no longer in effect in New York by the time this case reached the Supreme Court, so the injunction will have little direct impact. Nonetheless, the Court decided to issue an opinion anyway, just in case the restrictions are reinstated.
This case is just an example of religious organizations testing how far the Court will go to allow churches to act above the law. Even though houses of worship were given preferential treatment under Cuomo’s executive order, that was not enough for an entity that is used to having absolute power.
