Religious Right(s): Background on SCOTUS’s COVID Decision

Back in October, New York public health officials were concerned about rising COVID rates in Brooklyn, particular emanating from houses of worship, which had been holding mass gatherings with few pandemic precautions and lax mask wearing. Governor Cuomo responded by adopting tiered restrictions based on the infection rate in said communities. Specifically,

…the executive order and an initiative that it implements identify clusters of COVID-19 cases and then take action to prevent the virus from spreading. An area immediately around a cluster is known as a “red” zone, where attendance at worship services is limited to 10 people. The area around a “red” zone is known as an “orange” zone; attendance at worship services there is limited to 25 people. “Yellow” zones surround “orange” zones; attendance there is limited to 50% of the building’s maximum capacity.

Immediately, the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, a Jewish congregation also in Brooklyn filed suit, claiming that their First Amendment rights to freely practice their religion were being violated by Cuomo’s public health directive.

On Wednesday, the Supreme Court issued a ruling siding with the Catholic Church (which also applies to Agudath Israel).

The five-member majority blocked the state from enforcing the attendance limits while the challengers continue to litigate the issue at the U.S. Court of Appeals for the 2nd Circuit and, if necessary, return to the Supreme Court for a final decision on the merits. The court explained that Cuomo’s order does not appear to be neutral, but instead “single[s] out houses of worship for especially harsh treatment.” For example, although a synagogue or a church in a red zone is limited to 10 people at a service, there are no limits on how many people a nearby “essential” business — which can include acupuncture or a camp ground — can admit.

Because this case is ongoing, based on “legal neutrality,” and COVID rates in the areas that prompted Cuomo to act have dropped to a level low enough that the restrictions are moot, it is difficult to make a strong conclusion on what exactly this decision means going forward. However, the last three decades of SCOTUS rulings and congressional action on religion should give us reason to be concerned.

At the heart of Roman Catholic Diocese of Brooklyn and the other cases I review is the Establishment Clause:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

The clause is pretty simple or it would have been had James Madison had his way. In his original draft of the Bill of Rights, Madison wrote, regarding religion,

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.

Later, in Congress, he argued that “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.”

The Senate had another take on freedom of religion. The Senate’s initial establishment clause read,

Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion…

In a conference committee chaired by Madison, the two sides compromised and came up with what we now call the Establishment Clause, anchored by the pesky conjunction or.*

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

So, we know what Madison (and Thomas Jefferson) wanted the Constitution to say about religion. We know what members of the Senate thought, but Congress as a whole were not clear on what side of that or has more weight, or if both parts of the clause have equal weight.

For decades, the courts have jumped back and forth on the establishment clause. Some courts have given more weight to Madison’s intention that religion not be used to coerce people or influence law. Other courts side with the Constitutional-era Senate’s view that government must also protect the right of people to worship as they please.

In 1990, the Supreme Court heard a case called Employment Division, Department of Human Resources of Oregon v. Smith, commonly referred to as Smith. The case hit the court after Alfred Leo Smith and Galen Black, members of the Native American Church, were fired from their jobs as counselors at a private drug rehabilitation clinic for using peyote, a banned substance. Smith and Black’s lawyers argued that since the two were using peyote as part of a religious ritual their use was protected by the Establishment Clause. The state disagreed, stating that the two were fired not because of their faith, but due to their violation of drug laws.

Five justices — a mix of conservatives and liberals — decided for Oregon. In the majority opinion, written by conservative Justice Antonin Scalia, the court stated that state and federal laws prohibiting the possession of peyote were enacted in the public interest and that they applied to everyone. The peyote prohibition was not enacted or enforced to single out a single religion or religion in general. The restriction on peyote possession is a “neutral law of general applicability.”

Regardless of how one feels about drug laws, the Smith ruling set an important precedent, one which protected the whole of society against the whims of the religious. Unfortunately, Congress did not see things this way. Primed by a decade of Ronald Reagan and fear of the religious right, then Congressman Chuck Schumer, Democrat from New York, introduced the Religious Freedom Restoration Act (RFRA). Massachusetts liberal Democrat Ted Kennedy introduced a companion bill in the Senate (1993).

The RFRA was an attack on the Smith decision, specifically Scalia’s idea of neutrality. Schumer and Kennedy claimed that a religiously neutral law can burden the practice of religion as much as one targeting a specific faith. Key to RFRA is the line “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” To protect the public from religiously motivated human sacrifice or ritual rape, RFRA allows neutral prohibitions that have a “compelling government interest” and are carried out in the “least-restrictive” way possible.

The RFRA cruised through the House with no opposition. It passed the Senate with only three Nay’s. President Bill Clinton rushed to sign it. The RFRA is a classic example of “working across the aisle to get things done.”

In 1997, the RFRA was challenged in court in a case called City of Boerne v. Flores. The City of Boerne is in Texas, founded by German, “free-thinking,” abolitionist radicals. Flores is Patrick Flores, the Catholic Archbishop of San Antonio.

Here’s the case’s background: In 1993, Flores noted that Boerne’s 1923 mission-style St. Peter’s Church was running out of room, so he applied for a permit to expand the structure. Because the building was located in a historic district and the expansion was considered an addition to the main building, local officials said “Get back, Pat. Your request violates zoning laws.” Flores took them to court and lost.

In Flores, the U.S. Supreme Court ruled that RFRA was unconstitutional and that enacting it was outside “Congress’s enforcement power.” Congress responded with the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law which allows religious institutions to dodge local zoning laws and, as a sop to liberals, protects prisoners’ religious rights. In another testament to the power of bipartisanship, the RLUIPA had no problem clearing Congress and was eagerly signed by President Bill Clinton (2000).

Though SCOTUS ruled RFRA unconstitutional, “religious liberty” plaintiffs and defendant continued to use it in court cases. Native Tribes used the RFRA in an attempt to stop a ski resort from using reclaimed water to make snow, claiming second-use water contaminated plants, used in Native rituals, with “ghost sickness.” A Quaker pacifist cited RFRA to defend her not paying income taxes (which would go towards war, a violation of her faith). Christian fundamentalists used RFRA to argue against having to obtain Social Security numbers, something that they claimed was the “mark of the beast.” All of these cases crashed in court…and then came Hobby Lobby.

The year 2010 saw the passage of the Affordable Care Act (ACA). The ACA required employers to honor health plans that provided contraception services. Hobby Lobby, owned by right-wing, evangelical, Christian fundamentalists, claimed that the contraception requirement violated their “religious liberty” as defined by the RFRA. They dropped employee health insurance and were sued. The case, Burwell v. Hobby Lobby, went to the Supreme Court, which, in 2014, sided with Hobby Lobby in a 5–4 decision.**

In 2018, the Supreme Court took up Masterpiece Cakeshop v. Colorado Civil Rights Commission. The crime in the case was discrimination. A cakemaker refused to decorate a wedding cake for a gay couple, something which ran afoul with Colorado civil rights law. The cakemaker challenged his sanction under free speech and free expression of religion protections guaranteed under the First Amendment. The cakemaker won in a decision which allowed for religious-based legal discrimination of LGBT people.

The next step towards Roman Catholic Diocese of Brooklyn came in a July decision made this year. In May, Little Sisters of the Poor Saints Peter and Paul Home sued the state of Pennsylvania, claiming that their “religious liberty” was being violated by the Affordable Care Act’s insistence that contraceptive services are covered by health insurance provided through ACA.

“What about the Hobby Lobby case? Wasn’t that issue decided?” Yes, but it wasn’t until Trump took office that federal rules were created to express the Hobby Lobby decision, something Trump did with a 2017 executive order. Trump’s order was challenged by a handful of states in federal court. Several courts placed injunction of the new rules, stating that the rules were ”arbitrary and capricious.” Little Sisters had the cases combined and took them to the Supreme Court which ruled 7–2 that the new rules were fine. Hobby Lobby was now law.

We can rail against the Supreme Court putting “religious liberty” over public health (and, ironically, the right to life); rage about Mitch McConnell denying President Obama a Supreme Court pick; rue the rise of Amy Coney Barrett — and we should — but the decision in Roman Catholic Diocese of Brooklyn v. Cuomo doesn’t happen without a foundation — the Democrat’s Religious Freedom Restoration act, Hobby Lobby, and all the court cases in between. Beyond legal precedent, religiously-oriented Supreme Court picks, pro-Christian congressional legislation, and the politicization of “religious liberty” happened thanks to decades of non-stop, religious right-wing activism and persistent organizing, starting in 1976, with Ronald Reagan’s courtship of the religious right.

Nothing in politics is static. No matter the ideology or goals, every activist movement sees resistance. Every leap forward triggers a reaction, which often results in a few steps back. Organizers see huge defeats followed by great victories followed by a smackdown followed by revival. The key to progress (or, in the case of the right-wing, regress) is to keep on keepin’ on - work hard, take your lumps, learn, organize, and push forward. There is no other way.

As dangerous as the Roman Catholic Diocese of Brooklyn ruling is, it also provides a lesson on what happens when people commit themselves to change, work hard, and refuses to surrender. The lesson of persistence is apolitical, neither left, right, or center, but it is one that is essential to politics. Step back, clear the mind, look at what happened, learn from it, and get back in the fight. Do that and we will make progress.


*The Establishment Clause’s Or isn’t the only time a constitutional amendment’s sentence structure has led to a controversial ruling. In 2008, the Supreme Court heard District of Columbia v. Heller, a Second Amendment case on a D.C. handgun ban and requirement that guns have trigger locks. The Second reads,

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

D.C argued that the amendment was speaking to the importance of a “well regulated militia.” Heller’s attorneys countered that the “right…to keep and bear Arms” was the focus of the amendment. The Supreme Court agreed with Heller, writing,

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

**If you see some inconsistencies in the Supreme Court’s majority decisions on Hobby Lobby and Heller with conservative justices’ claim to be “Textualists” and/or “Originalists,” you are correct. Textualists argue that the Constitution must be read as written, with little to no interpretation by the courts. Originalists believe that we must abide by the “original intent” of the Constitution’s framers. As noted, unfortunately sentence structure begs more than a textualist interpretations of the Exemption Clause and the Second Amendment. James Madison’s original intent in his draft of the Establishment Clause was clearly out of his fear of religious tyranny. The “religious liberty” portion of the clause was added as a compromise to ensure passage in Congress. As far as the Second Amendment goes, when the Constitution was drafted, militias were their main concern. The militia — regulated by the state — was contingent on a “right to bear arms.” This was essential, because, at the time, the people, not the state, armed themselves. Additionally, to extend the right to bear arms to possession of an assault rifle — a weapon not invented until World War II, by the Germans — runs counter to an originalist take on the Second Amendment.

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