Today, Explained - God-given right?

Episode Date: December 3, 2020

The Supreme Court ruled that New York state can’t limit how many people gather in church, even during a pandemic. Vox’s Ian Millhiser explains why this is one of the most significant religious liberty cases in the last 30 years. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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It basically said to reconsider pandemic restrictions on the number of people who can gather inside a house of worship. The order comes on the heels of a formal decision from around Thanksgiving. And it's one religious conservatives are likely thankful for, because the decision basically says COVID restrictions on religious gatherings violate religious liberty. And it dealt with the restrictions that New York State put on various institutions in order to fight the COVID-19 pandemic. Ian Millhiser is a senior correspondent at Vox. He writes about the country's most important court. where there is already either a significant outbreak or the potential for a very significant outbreak, there were very rigid caps on the number of people who could be in a house of worship at any given time. This is about mass gatherings. This is about mass gatherings.

And one of the prime places of mass gatherings are houses of worship. And so especially in faith traditions where people gather and sing, that is potentially a very dangerous activity. You could have a room full of people who are expelling COVID out into the air and then everyone else in the congregation is breathing that in. And so New York felt it was important to prevent COVID from being spread in that way. The Supreme Court said no. Breaking news overnight. The Supreme Court has ruled against Governor Cuomo and has temporarily blocked restrictions of religious services in New York State.

The two-word description is religious liberty. They felt that the houses of worship, the congregation's rights to, you know, be able to gather people together, at least be able to gather more people together at one time than New York wanted, was more important than the state's interest in preventing the spread of the coronavirus. So how did the vote on this ultimately shake out? So it was five to four. And one thing that's significant is that one of the four, one of the justices in dissent was Chief Justice John Roberts, who up until when Justice Ginsburg passed, had been the swing vote on the Supreme Court. Roberts is very conservative. But Roberts's view was that basically the court should defer to public health officials. And so his attitude was, look, I don't want to be

responsible for spreading COVID-19. So if the state public health officials say this is what we need to do to prevent the spread of a deadly disease, Roberts was inclined to defer. And Roberts would typically vote for with the four liberals to say that the court should defer to public health officials. The problem is that there aren't four liberals anymore. There are now three liberals and the foremost conservative justices who were there before Justice Ginsburg's death, plus Amy Coney Barrett, that adds up to a majority. And so Roberts is now irrelevant. And there are now five votes to say that there are

much broader religious liberty protections under the Constitution, even in cases where the stakes are that if you allow people to gather in places of worship, that people could get COVID and die. So how did the other five justify this? Because we should note that even though the Diocese of Brooklyn felt like these rules were unfair, Pope Francis doesn't agree. He has actually criticized groups for not following COVID-19 restrictions. The general rule is that you can't discriminate against religion. And so, you know, if the state had said that movie theaters get treated better than churches or,

you know, some other institution that has auditorium like sitting gets treated better than houses of worship, that would have been unconstitutional. But what the court did in this case is they basically broadened the concept of what counts as discrimination. So the issue wasn't that similarly situated businesses were treated differently than houses of worship. The issue was that any business is treated differently. So, you know, grocery stores in New York State, for example, could let more than 10 people in acupuncture facilities is an example that the court gave in its opinion. They can have more than 10 people. And since any secular business was treated differently than houses of worship, the Supreme Court reasoned that this is now unconstitutional. Now, I mean,

there's a number of problems with that reasoning. But I mean, the most basic one is that people don't normally gather in acupuncture facilities and they like speak in tongues or something. I don't know. But like it wasn't irrational to say that places of worship are similar to movie theaters and lecture halls and things like that and not similar to, say, a grocery store. And so we can treat movie theaters, churches, mosques, synagogues, all of these things that are similar one way. And we can treat acupuncture facilities and garages and grocery stores a different way. You know, that was the way that things used to work. But now the new rule is that if you want a religious exemption from some sort of legal obligation and you can point to any secular entity that is treated better than you are as a religious entity, then you are very likely to win your case. So this particular case really influenced the way that we think about

religious liberty now and quite possibly for the next few decades. Before this point, what was the major case that really decided how we looked at religious liberty? Let me go into a bit of history here. In the 1960s, the Supreme Court handed down a case called Sherbert. Petitioner or appell first important case that said that there are some cases where we recognize that people of faith should not be burdened by the law. The question presented in essence is whether a Seventh-day Adventist observing the Saturday Sabbath from Friday evening at sundown to Saturday evening at sundown may be required to work on Saturday under penalty of loss of unemployment compensation. And Sherbert and the Sherbert line of cases said, no, no, the government can't do that. The government can't make Saturday Sabbatarians work on the day that they consider to be holy.

The problems arise when someone with a religious objection to the law is seeking an objection that hurts someone else. So, you know, if I want Saturday off and I say, look, I'll work Sunday instead, I'm not hurting anyone. Like, it's fine. Like, I can work Sunday and, like, everyone will be fine. But let's say, I mean, to take some recent cases, I don't want my employees to have birth control. And so I refuse to follow a federal regulation that requires me to provide them birth control coverage and their health insurance. That was the Hobby Lobby case.

In a major ruling today, the Supreme Court said that some employers cannot be forced to cover birth control in their health plans if that violates their religious beliefs. Contraceptive coverage had been mandated for employers under Obamacare. Let's say that I don't want my business to serve gay people or trans people or, you know, some other marginalized group. These are cases where if I get the religious exemption that I want, I am hurting someone else. I'm taking away someone else's rights. And so the line that the Supreme Court had drawn for many, many years is it basically said, I get my religious objection unless I'm going to hurt a third party. And then I don't get my religious objection. Hobby Lobby changed that. Hobby Lobby was really the first case to say that a religious objector can claim an exemption from the law that does harm to a third party.

And that was an earthquake. What makes this latest case, the Roman Catholic Diocese case significant is it basically just expands the universe of what counts as a violation that then gives someone a religious exemption. So the law used to be, at least when we were talking about state law. So so long as the law applied equally to secular people and religious people alike, then it was fine. You didn't get an exemption from a state law. The Roman Catholic Diocese case doesn't explicitly overrule that rule, but it changes the definition of discrimination. So now, again, it's considered to be discrimination if you can show any example of any secular entity that is treated differently than you are, possibly for any reason. a lot of cases where people who have religious objections to following a particular law demand an exemption from the court. They get it. And they get it even if the exemption that they are seeking hurts someone else. Coming up after the break, Ian tells us why not all religious liberty lawsuits are created equal. Support for Today Explained comes from Aura.

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And so we wanted to surprise her with the AuraFrame. And because she's a little bit older, it was just easier for us to source all the images together and have them uploaded to the frame itself. And because we're all connected over text message, it was just so easy to send a link to everybody. You can save on the perfect gift by visiting AuraFrames.com to get $35 off Aura's best-selling Carvermat frames with promo code EXPLAINED at checkout. That's A-U-R-A frames dot com promo code EXPLAINED. This deal is exclusive to listeners and available just in time for the holidays. Terms and conditions do apply. So, Ian, what do these cases say about where the court and I guess America now stand on the issue of religious liberty?

So I think the broader picture here is that before Hobby Lobby, I think the court understood, I mean, for lack of a better way to put it, that like we live in a society like we live in a pluralistic society. We live in a society with people with many different faiths. And the only way to make that work is for us to all have common obligations to another. And we decide what our common obligations are through the democratic process. So, you know, it is not in the Constitution, for example, that private businesses can't discriminate against LGBT people. But if the legislature passes a law saying that that's illegal, the legislature is allowed to do that. And we all then have a common obligation not to discriminate. And if you don't like that common obligation, you're not powerless. You can vote for different lawmakers who will repeal that law. You can lobby the lawmakers that we have. You can lobby the executive branch and I'm just going to go to the court. I'm going to claim that I don't want to follow this obligation. And I'm just going to be relieved of it, even if it means that other people get hurt. Now, I think the court is putting the thumb on the scale for people with certain kinds of religious objections. But even if the Supreme Court made this decision with the Roman Catholic Diocese of Brooklyn in mind, can't other religious groups still use this decision to their benefit?

Couldn't a mosque or temple in New York now defy social gathering rules? My best guess is that the Supreme Court's going to apply this pretty universally to various houses of worship that want to defy these rules. Shortly after the Roman Catholic decision came down, there was a case called Agudath Israel, which was basically the same case. It just involved an Orthodox synagogue rather than a Roman Catholic church. And the Supreme Court applied the same rules to the Jewish sect that they applied to the Christian sect. So, so far, at least they seem to be applying this rule fairly. That said, there are disturbing signs that this Supreme Court has been less friendly to religious liberty claims brought by Muslims than they have to religious liberty claims brought by Christians. Two cases that concern me there. One is Trump v. Hawaii, the so-called Muslim ban case,

where the Supreme Court ignored a bunch of fairly virulent anti-Islamic statements from President Trump to uphold one of his policies. Until we are able to determine and understand this problem and the dangers threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in jihad. where the Supreme Court engaged in really blatant religious discrimination. They said that there was a state where if you were going to be executed and you were Christian, you were allowed to have a Christian pastor present. But if you were Muslim, you were not allowed to have a Muslim imam present during your execution. So I do think that the Supreme Court has shown a disturbing obligation to wear a beard. And so when the government has tried to prevent cops from growing beards or when they have tried to prevent prisoners from growing beards, the justice has sometimes stepped in and said, no, they can grow the beard. So they don't always rule against Muslims, but they do rule against Muslims and in ways that I think should

suggest that the court is not applying its rules in a completely even-handed way. So what's next for the court then? Are there other religious liberty cases that they're going to hear soon that could take the Hobby Lobby and Roman Catholic Diocese decision further? So the case that I'm watching very closely right now is a case that they recently heard oral arguments. In case number 19123, Fulton versus City of Philadelphia. Fulton is an unusual case in that it involves a government contractor contracted with the City of Philadelphia to help Philadelphia identify potential foster families to place foster children with. And the head of Catholic Social Services testified that certifying a home of a same-sex

couple would be in violation of that religious belief, that a home study is essentially a validation of the relationships in the home. What makes Fulton new and different and, you know, my opinion, potentially worrisome is that Fulton is a case about a government contractor that was engaged in government services on behalf of the government and wanted to be able to continue to have a government contract without complying with one of the terms of that contract, which says that they weren't allowed to discriminate. And historically, the Supreme Court has said that government contractors are different. When the government is hiring people to do work on behalf of the government, it has much more leeway to make demands of its own contractors than it does to just tell some random private business what to do.

So like Fulton, I think, and, you know, I think that the city of Philadelphia is likely to lose the Fulton case. It would be a significant escalation, I think, in the religion wars because it would mean that the government could potentially have to engage in discrimination. We're not just talking about a conservative bench expanding what religious liberty means here. We're also talking about the nation's highest court basically deciding whether or not a state government can implement a public health rule during a pandemic. Did this decision just demonstrate how hard it's going to be for Democrats to implement any kind of top-down regulation in the next term? I mean, certainly whenever religion is implicated. Now, I mean, I don't want to exaggerate the

holding of the Roman Catholic Diocese case. Like, it is a case about religion. It's not a freestanding objection to preventing the spread of COVID-19. We're seeing a lot of lawsuits. I mean, I think there's two or three cases pending for the Supreme Court right now where other religious entities are seeking exemptions from COVID-19 regulations. You know, you could imagine a case where there's a private business owner who manages to frame their objection to COVID-19 regulations as a religious objection. You know, you could imagine a hypothetical plaintiff who says, my faith requires me to not wear a mask. And so I have a constitutional right to not wear one. And like you might see cases like that. I think the open question, though, is what happens when religion isn't implicated. And we've seen it some lower courts, you know, the Wisconsin Supreme Court, for example,

which has historically been very right wing, struck down the governor and the state health director's ability to close bars and to like put in place a lot of restrictions to prevent the spread of covid i could see based on what the supreme court has done up to this point that they could say that the president or the biden administration's powers are very limited and they have to get Congress to put in place any regulation. I could see this Supreme Court based on some of their federalism decisions saying that the federal government is very limited in what it can do to prevent COVID-19, but states potentially have more power. So like, I think that there are a lot of limits that this have three liberals plus Roberts on the left, and we have a block of five very, very conservative justices. And I hesitate to predict

everything that they're going to do because there hasn't been a five justice block that is as far to the right as the five justice majority that we have now is, I mean, you'd have to go back to the 30s to find a Supreme Court that's as conservative as this one. And, you know, until I see more decisions from them and I just get more information about what they're going to do, it's hard to predict what they're going to do. And I think, you know, that makes things very difficult for the Biden administration. Ian Millhiser is a senior correspondent at Vox. He writes about the Supreme Court and the Constitution.

I'm Halima Shah, sitting in for Sean Romsferm, who will be back on Monday. It's Today Explained.