Under recently announced Supreme Court constitutional ground rules, the government violates the First Amendment when, without a compelling justification, it treats religious behavior better or worse than it does comparable secular activities. Unlike the guarantee of equal treatment promised to racial minorities under the Fourteenth Amendment’s equal protection clause, which requires proof of government purpose to treat individuals differently because of race, the Supreme Court’s current rule of religious–secular equality does not require a showing of government purpose. Instead, a reviewing court simply compares the legal treatment of the secular activity in question with the treatment of the most comparable religious activity. If the legal treatment differs, constitutional alarm bells go off.
When virtually identical religious and secular activities are being compared, the court’s rule of strict equality is relatively easy to apply. So, when secular publications are taxed but comparable religious publications are tax-exempt, the First Amendment’s establishment clause is violated because religion is being treated better than identical secular activity. Similarly, when secular school playgrounds are subsidized but playgrounds for religious schools are excluded, the First Amendment’s free exercise clause is violated because religion is being treated worse than identical secular activity.
Sometimes, though, the most appropriate analogous secular activity is not immediately obvious. When that happens, the constitutional baseline must be chosen from among a number of plausible secular alternatives. That’s just what the Supreme Court was asked to do in reviewing New York State’s effort to limit the number of worshippers in churches and synagogues located in areas of high viral transmission. In defense of its restriction, New York argued that, from the standpoint of viral transmission, the closest secular analogues to worship services are public lectures, theatrical performances, and fitness workouts, each of which faced more severe restrictions than houses of worship. The Catholic Diocese of Brooklyn and a group of Orthodox Jewish congregations disagreed with New York’s choice of a secular constitutional baseline. They argued that the communal act of shopping, especially shopping in big box stores, should be the controlling secular baseline.
Without any discussion, all nine Supreme Court justices opted for big box stores as the secular baseline. Five justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—ruled that since attendance at religious worship services had not been shown to pose a greater threat of viral transmission than shopping in big box stores, New York’s well-intentioned effort to limit the spread of Covid-19 by limiting attendance at indoor worship services in high transmission areas was a discriminatory interference with the free exercise of religion. Justice Gorsuch wrote a particularly vehement concurring opinion rejecting the idea that public health concerns linked to science could outweigh an individual’s religious conscience.
Chief Justice Roberts and Justice Breyer argued that since New York had temporarily lifted the worship restrictions in light of decreased viral spread, it was no longer necessary to decide the close question of whether shopping in Macy’s poses a greater or lesser risk of viral spread than thirty Orthodox Jewish men’s reading Talmud in a Williamsburg shul. Justices Kagan and Sotomayor agreed with the chief justice and Justice Breyer that no difficult decision about relative risks was currently necessary.
If, they argued, a resurgence of the virus forced the reinstatement of New York’s restrictions on attending indoor worship services, there would be time enough to decide the difficult issue of relative risk. If a decision was to be made, though, they argued for deferring to the expertise of public health officials about the relative risk of viral spread posed by different categories of communal activity, including indoor religious worship. They would have allowed New York to use public lectures and theatrical performances as the secular baseline because, as with indoor worship, those activities involve prolonged interaction with the same persons and repeated episodes of speaking and chanting, while big box shopping involves shorter, less intense personal interaction. If forced to adopt big box shopping as the baseline, they would have deferred to the plausible concerns of public health authorities about the relative transmission risks associated with both communal activities.
Justice Kavanaugh cast the swing vote. He agreed with the chief justice that deciding whether indoor worship posed a greater risk of Covid-19 infection than big box shopping was a close call but believed that the very real prospect of a reinstatement of New York’s restrictions if the virus surged required him to act now to protect the worshippers’ future First Amendment rights.
Who was right? Given what we know about the spread of Covid-19, it is certainly plausible for New York to be particularly concerned about any prolonged indoor communal activity like worship centered on singing and chanting. But, at this stage of our knowledge about the disease’s transmission, we just do not know whether a Catholic Mass is more or less dangerous in spreading the virus than a Black Friday sale. The real issue before the Supreme Court, therefore, was not who was right about whether Shabbat is more dangerous than Black Friday; rather, it was how we should manage risk or error when we’re not sure about who’s right.
We have been there many times before. Lawmakers and judges inhabit a vast fog of law, a surreal realm of uncertainty and doubt. Much of the time, we can only guess about the justification for government action or inaction. Since many, perhaps most, regulatory decisions are made under conditions of substantial uncertainty, legal outcomes often rest on a patchwork of predictions and assumptions driven by some combination of science, superstition, self-interest, ideology, hope, and fear. Operating within such an uncertain environment, rules that instruct lawmakers, lawyers, and judges about how to behave in the absence of certainty necessarily assume enormous practical importance. In fact, much of what passes for law in the Supreme Court are instructions about how to behave when we’re not sure who is right.
In criminal cases, for example, when personal liberty is at stake, the court reads the enigmatic procedural due process clause of the Fifth and Fourteenth Amendments as requiring a unanimous jury to find every fact needed for a conviction “beyond a reasonable doubt.” If twelve jurors aren’t each sure enough about the district attorney’s proof, the court instructs them to err on the side of personal freedom, even though a potentially guilty person may go free and inflict more harm. In effect, the court balances the risk of wrongly convicting an innocent person against the risk of incorrectly acquitting a potentially dangerous criminal, and instructs us, in the absence of virtual certainty, to run the risk of an incorrect acquittal rather than an incorrect conviction.
Similarly, in most First Amendment cases in which religious or political liberty is at stake, the Supreme Court, following the advice of Justice Oliver Wendell Holmes, reads the First Amendment to require the government to provide a persuasive factual justification for any effort to limit freedom of speech or worship. Most of the time, the government’s justification takes the form of a prediction of the serious harm that will flow from the targeted activity. If reviewing judges aren’t sure about the accuracy of government’s prediction of harm, they are told to err on the side of personal freedom, even though that means taking the risk that government’s warning about potential serious harm might turn out to be right.
The hard First Amendment question raised by the New York case is how sure a reviewing judge must be about the government’s assessment of risk before upholding a regulation limiting indoor worship in a time of a potentially lethal pandemic. Justices Sotomayor and Kagan argued that, given the serious health risks created by the pandemic, proof of plausibility is all that should be required before indoor worship may be treated as riskier than shopping. Under such a relatively weak standard, as long as public health authorities assure the court that they have plausible reasons for believing that indoor worship is riskier than big box shopping, the heightened risk would justify New York’s more stringent limits on indoor worship.
Five justices disagreed about the government’s burden of justification. They ruled that, at a minimum, evidence of indoor worship’s being probably riskier than big box shopping should be required. Under the majority’s more demanding standard, public health authorities would be required to marshal data indicating a higher rate of viral transmission associated with indoor worship before worship could be treated worse than shopping. I suspect that at least several of the five, if pushed, might set the bar even higher, requiring evidence that indoor worship is clearly riskier than big box shopping. Two justices found it unnecessary to decide one way or another because the restrictions had been lifted for the time being.
When the dust settles, the New York case was about managing constitutional risk under conditions of unavoidable uncertainty—balancing a plausible risk of potentially increased viral transmission against the risk of unneeded intrusion on religious liberty. A five-justice majority of the court was willing to tolerate the risk of increased transmission to avoid the risk of potentially unnecessary limits on indoor worship. Two, perhaps as many as four, justices were willing to tolerate a risk of unnecessary limits on indoor worship to avoid a plausible risk of increased viral transmission.
The constitutional text says little or nothing about how, in the absence of hard data, such subtle risk allocation judgments should be made, and who should make them. If it is to be judges, can we avoid a jurisprudence based on subjective beliefs about the relative importance of religious worship and public health? Is Justice Gorsuch the voice of a future in which government regulation is almost always trumped by religious belief? If, on the other hand, the future belongs to public health officials operating under a standard of plausibility, can the deeply religious avoid rule by scientists for whom intense religious commitment is a quaint custom to be studied, tolerated, but never deemed important enough to warrant the taking of a risk?
The truth is that the court’s newly minted iron law of secular–religious equality doesn’t work in settings like the New York case in which disagreements thrive about the appropriate secular baseline and uncertainty exists about how to compare the relevant secular and religious activities. Neither judges nor scientists know whether, when it comes to viral transfer, worship or shopping is riskier. Nor can they manage risk effectively in settings where the risks are not remotely commensurate. Missing a service of worship is undoubtedly painful to a believer. But how can such pain be balanced against spreading possible death among the community?
The late Justice Scalia had it right back in 1990, when he warned in Employment Division v. Smith that courts should confine judicial enforcement of the free exercise clause to purposeful efforts to harm religion. There’s plenty of that going around. In the absence of such an improper purpose, Justice Scalia warned that seeking to develop a judicially enforceable doctrine of religious freedom without placing government purpose at its center would inevitably slide into arbitrariness. The court’s mechanical treatment of New York’s well-intentioned effort to save lives at the expense of religious solace proves he was right. More challenges are on the way. The Supreme Court has already instructed a lower court to reconsider California’s rules under the demanding standard announced in the New York case. New Jersey’s rules wait on deck.
And that’s only the beginning. Any government regulation that adversely affects religion without dealing equally with every possible analogous secular activity is fair game for challenge, no matter how pure the government’s motive may be. That’s the final irony in the Supreme Court’s new “purposeless” doctrine of religious–secular equality. By jettisoning any inquiry into the government’s motive or purpose, the new, equality-driven free exercise clause treats religion better than race. But that also violates the First Amendment.