by Michael C. Dorf
In a recent op-ed in USA Today, Professor Laurence Tribe and I argued that last week's SCOTUS ruling in Roman Catholic Diocese of Brooklyn v. Cuomo, and especially Justice Neil Gorsuch's concurrence in the case, should raise alarm bells for those who care about imposing very high costs on the American public in order to accommodate or even write into law the views of traditional religious conservatives. We were especially concerned by the juxtaposition of how Justice Gorsuch bent over backwards to find illicit discrimination against traditional religion while essentially mocking a line of cases that provides the bedrock for reproductive rights. We concluded our essay with a literary allusion: "A court that affords no protection to unenumerated rights to bodily integrity and privacy, while simultaneously eroding the separation of church and state would look less like our familiar institution and more like the highest judicial authority of a place like Gilead — the theocratic and misogynist country in Margaret Atwood’s dystopian 'The Handmaid’s Tale.'"
The overwhelming majority of responses I saw to our op-ed were supportive, but some were not. For example, UVA Law Professor Julia Mahoney on Twitter said that Professor Tribe and I needed "to get a grip and calm down" because there's no "sympathy for a 'Gilead' style theocracy among any of the Justices." Yet that response mostly takes issue with our metaphor about the end point of the Court's current path. We did not mean that the result in Roman Catholic Diocese was reminiscent of Gilead.
But enough about the suggestion that Professor Tribe and I overreacted to Roman Catholic Diocese. Here I argue that the bigger problem is under-reaction. People who should know better--like Professor Cass Sunstein--as well as people who don't know any better but nonetheless have a large platform--like NY Times columnist Bret Stephens--have written oddly laudatory accounts of the case. I'll consider the defenses of Roman Catholic Diocese from weakest to strongest, beginning with Stephens, moving to Sunstein, and then concluding by discussing a thoughtful (but still wrong) NY Times op-ed by Professors Michael McConnell and Max Raskin.
Stephens begins as follows:
It may take a terrorist attack, a war or some other national emergency, but America will one day thank Justice Neil Gorsuch for his stirring words last week in Roman Catholic Diocese of Brooklyn v. Cuomo. “Government,” he wrote in a concurrence to the 5-4 majority opinion, “is not free to disregard the First Amendment in times of crisis.”
Stephens thus suggests that when some future crisis threatens other civil liberties besides religion, Justice Gorsuch will man the barricades to protect, say, a right to stage a public protest, which is also enshrined in the First Amendment.
Maybe, but instead of imagining how Justice Gorsuch would perform in the future, we do better to look to his actual record. Doing so, we discover that Justice Gorsuch isn't even a consistent champion of the First Amendment's Free Exercise Clause. He believed he detected religious discrimination against observant Catholics and Jews because their worship services weren't advantaged sufficiently relative to comparable secular indoor gatherings like concerts, sporting events, and lectures, but when the President of the United States publicly and repeatedly announced his animus against Muslims as a ground for restricting entry into the US from a reverse-engineered list of overwhelmingly-Muslim countries, Justice Gorsuch and his fellow Republican appointees looked the other way.
Is that an unfair comparison, given the national security context of the Travel Ban Case? Hardly. Chief Justice Roberts (who is not a liberal, even if the appointment of extremists even further to his right sometimes makes him look moderate in comparison) took the occasion of the Travel Ban litigation to formally overrule Korematsu v. US. Yet, in granting extreme deference to political authorities based on bogus assertions of national security, the majority that Justice Gorsuch joined in Travel Ban more nearly followed than repudiated Korematsu. As Professor Jamal Greene wrote in the Yale Law Journal, the conservatives' self-congratulatory purported repudiation of Korematsu in Travel Ban was "not just empty but also grotesque." As Professor Greene explained, Travel Ban
condemns racism with one hand but deploys tokenism with the other. The statement [nominally overruling Korematsu] appears in a case in which the majority blessed transparent religious bigotry on the part of the sitting President while cloaking itself in righteous indignation over a seventy-four-year-old decision whose wrongness is a matter of incompletely theorized consensus.
Given Justice Gorsuch's willingness to sacrifice Muslims to a bogus national security emergency, it takes a special kind of naïveté to believe that his paean to the First Amendment in times of a real public health emergency in a case involving Christians and Jews was not likewise empty and perhaps even grotesque.
Stephens compounds his naïveté with ignorance. The majority in Roman Catholic Diocese had to reckon with the Court's 1990 opinion by Justice Scalia in Employment Division v. Smith, which construed the First Amendment's Free Exercise Clause as an anti-discrimination principle but not as a right of religiously motivated individuals or institutions to exceptions from "neutral, generally applicable" limits that apply to everyone. Thus, the Court in Roman Catholic Diocese at least claimed that NY Governor Andrew Cuomo's order discriminated against religion. As I explain below, that claim was far-fetched, but the Justices made it nonetheless. Stephens, by contrast, gives up the game when he writes that "[t]he right to the free exercise of religion, even if subject to regulation, deserves greater deference than the right to attend your local cineplex." Stephens is not actually complaining about discrimination against religion. He is asserting that religious institutions should receive specially favorable treatment. One might think that's a sound idea on normative grounds, but it's not currently the state of constitutional law.
Brett Stephens can perhaps be excused for his ignorance, as he is not a lawyer. I would urge Stephens to stay in his lane, except that his lane is pollyanish and dangerously wrong climate denialism. In any event, let's move on to more serious people.
Professor Sunstein is obviously much much more sophisticated about law than Bret Stephens, but that only makes his take on Roman Catholic Diocese all the more perplexing. Describing liberals as overreacting to the opinion, Professor Sunstein writes: "If we take the court’s ruling on its own terms, it’s small potatoes. Everyone on the court agreed that if New York discriminated against houses of worship, its action would have to be struck down, pandemic or no pandemic. That idea breaks no new ground." Professor Sunstein thus attacks a straw man.
No one said that it is novel or objectionable for courts to strike down regulations that actually discriminate against religion. The idea that breaks new ground is the expansive definition of what counts as discrimination in cases like Roman Catholic Diocese. Governor Cuomo's now-defunct limits of ten worshippers in red zones and twenty-five in orange zones were, to repeat, more favorable for religious gatherings than for comparable secular gatherings. If I wanted to give a lecture on the ways in which eating animals leads to increased risk of zoonotic pandemics, the governor's order, while in effect, would have barred my doing so, even though a minister, priest, rabbi, or imam in the building next door could give a sermon saying God will protect congregants from COVID-19 as part of a worship service of the same size.
Professor Sunstein fawningly quotes Justice Gorsuch's statement that "there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques." Yet Professor Sunstein does not even address--much less refute--the response that Justice Sotomayor, joined by Justice Kagan, provides. Quoting the concurrence of Chief Justice Roberts in a May case from California, Justice Sotomayor writes:
New York applies “[s]imilar or more severe restrictions . . . to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” Likewise, New York “treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
Whereas Professor Sunstein does not acknowledge the actual issue in Roman Catholic Diocese--what counts as religious discrimination?--Professors McConnell and Raskin are substantially more nuanced. They recognize that a typical patron of a bike shop or liquor store will not sit in a stationary position and sing for an hour or more, but, they point out, the people who work in bike shops, liquor stores, and other businesses deemed essential do linger in their place of work where they can be exposed (even if masked) to a great many possibly infected customers over the course of a shift. Parishioners-to-grocery store-customers may not be an apples-to-apples comparison, McConnell and Raskin admit, but parishioners-to-workers is.
The op-ed by Professors McConnell and Raskin is level-headed but nonetheless wrongheaded for three reasons. First, Supreme Court cases make precedent not based on what they might have said but based on what they actually said. Maybe a sound opinion could have been written justifying the result in Roman Catholic Diocese by comparing the health risks to workers and to worshippers, but the actual precedent-setting opinion the Court wrote doesn't do that. The per curiam majority discusses "shoppers." Likewise, Justice Gorsuch complains about limits that apply to worship services but not to customers who wish "to pick up another bottle of wine [or] shop for a new bike."
Second, the fact that Governor Cuomo may have drawn imperfect lines between worshippers and workers is not persuasive evidence of discrimination in any conventional sense. Dissenting in a similar case from Nevada in July, Justice Kavanaugh expounded the view that a majority of the Court now appears to embrace: discrimination against religion exists if there is even one similarly situated secular actor treated more favorably than a religious actor, even if most similarly situated secular actors are treated no better than or even worse than religiously motivated ones. As I explained in a blog post discussing that case, this view, which builds on an argument advanced by Professor Laycock, relies on a conception of discrimination that one finds nowhere else in constitutional law.
What's really going on is that the Roman Catholic Diocese majority are disregarding the Smith rule while pretending to follow it. Cuomo's order didn't single religion out for adverse treatment. True, one could say that the order--insofar as it undercounted the risks to workers at the likes of bike shops and liquor stores--was not narrowly tailored to the state's compelling interest in health. It should therefore fail heightened scrutiny if heightened scrutiny applies. Yet under Smith, one only gets to the narrow tailoring inquiry of heightened scrutiny after determining that a law discriminates against religion. If a court can use the narrow tailoring inquiry itself to ascertain whether a law discriminates against religion, then the court has effectively overruled Smith.
And that's not at all surprising. Professors Laycock and McConnell are two of the legal academy's most prominent and effective critics of Smith. For over thirty years, each of them has been arguing that free exercise should be construed as no mere anti-discrimination principle but as the basis for a right of religiously motivated individuals to exemptions from neutral, generally applicable laws, unless the government can satisfy strict scrutiny. In the current Court they appear to have found a receptive audience.
Now to be clear, I myself have expressed serious reservations about Smith. I think the case was wrongly decided as an original matter and that, notwithstanding stare decisis, there are somewhat persuasive arguments for overruling it--although I worry that the current Court would use the overruling of Smith as a license to gut anti-discrimination law. But whatever one thinks about whether Smith should be overruled, unless and until it is overruled, it's at best confusing and at worst dishonest to say that a case like Roman Catholic Diocese involves discrimination against religion.
Third, and finally, none of the authors I've critiqued here--not Stephens, Sunstein, nor McConnell and Raskin--grapples with Justice Gorsuch's alarming and unprovoked attack on just about all unenumerated rights. Professors McConnell and Raskin seem especially oblivious to this peril. They write that Roman Catholic Diocese provides assurance that "when public health measures intrude on civil liberties—not just religious exercise, but other constitutional rights—judges will" protect us from overreaching. Yet it is precisely those "other constitutional rights" that Justice Gorsuch's mocking of "penumbras" and "substantive due process" endangers.
The danger is precisely the one that Professor Tribe and I identified: a Court that sees discrimination against religion where there is in fact modest accommodation of religion but that disparages reproductive rights. Our critics are right that the US is not yet Gilead, but even baby steps on the road there should be identified and resisted.