As a rabbi who has not attended an indoor prayer service since March, I still would have been happy if the Supreme Court had held that draconian restrictions on indoor religious services are unconstitutional. However, what the Court’s liberal and conservative justices actually evaluated in Roman Catholic Diocese v. Cuomo was whether New York’s coronavirus restrictions had targeted religion for harsh treatment. That should never have been the issue, and the fact that it was makes the Court’s holding a hollow victory for religious liberty.
In Employment Division v. Smith (1990), Justice Antonin Scalia wrote for a 5-4 majority that only laws that explicitly address religion must be “narrowly tailored” to a “compelling state interest,” while if a law is “facially neutral” toward religion any effect it has on religious practice is acceptable. Thus, if a state limited all gatherings to five people, the court would not ask whether it was necessary to apply that rule to religious gatherings, even though, for example, certain Jewish ritual requires at least ten people to be present. On the other hand, if a state limited religious gatherings to 100 people, a court would evaluate whether that restriction was narrowly tailored to a compelling state interest.
Justice Sandra Day O’Connor’s concurring opinion in Smith offers a better approach. She argued that governments are constitutionally required to provide reasonable accommodations for religious activity regardless of whether a law addresses religion explicitly. For facially neutral laws, Justice Scalia’s rule allows but does not require the government to provide religious accommodations. The flaw in this approach is obvious, as Justice Scalia acknowledged. “It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in[.]” Justice Scalia argued that “that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” But as Justice O’Connor argued, the fact that preferred religions would fare better than less popular religions in Justice Scalia’s scheme was not merely an inconvenience but rather identified the essential purpose of the First Amendment’s protection of religion. Justice O’Connor wrote that “the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”
The Court’s analysis of New York coronavirus restrictions in the Roman Catholic Diocese case demonstrates other significant problems with the facial neutrality rule. The Court’s evaluation of whether New York’s law was facially neutral toward religion was clearly influenced by the Justices’ political outlook. The conservatives were persuaded by the fact that religious gatherings in “red zones” were more restricted than activities in laundromats and liquor stores. They, therefore, said that the ten person occupancy limit was an unnecessary restraint on religion. Justice Sonia Sotomayor’s dissent noted that hardware stores and laundromats are not places where people gather “inside to sing and speak together for an hour or more at a time.” According to her take, religious gatherings actually were singled out in order to distinguish them from more similar activities such as movies, concerts, and sporting events, which were shut down entirely, while religious services were allowed to continue, albeit with draconian limitations on attendance. Since in her view New York’s restrictions were “facially neutral” (or, in fact favorable) to religion, Justice Sotomayor said that the Court should not address the question of whether the ten person limit was necessary.
The history of New York’s coronavirus orders seems to bear out Justice Sotomayor’s finding that religious services were singled out for favorable treatment. The first reference to religious activity in those orders (Order 202.3) merely noted parenthetically that worship services were among the “gatherings and events” subject to restrictions along with concerts, conferences, and performances before large audiences. The next two orders referencing religious activity (Orders 202.32 and 202.38) singled out religious services (and Memorial Day services) for lesser restrictions than other “non-essential gatherings.” Order 202.68, which the Supreme Court reviewed, continued the practice of distinguishing religious gatherings from “non-essential gatherings.” Admittedly, the use of the term “non-essential” when discussing religious gatherings is vexing, but it seems that the purpose of these orders was to restrict gatherings in general, and the term “non-essential” was a carry-over from the distinctions among other essential and nonessential activities that started in Order 202.6. In fact, the New York coronavirus orders never use or define the term “essential gathering” and while Order 202.3 includes worship services in its parenthetical list of “gatherings and events,” Orders 202.14, 202.18, and 202.31 do not include worship services in parenthetical lists of “non-essential gatherings.” In that light, when Orders 202.32, 202.38 and 202.68 relax the restrictions on “non-essential gatherings” for religious activities, it seems to be because such activities fit into the scheme that regulates gatherings, not because the state considered religious activities to be non-essential. If anything, New York was singling out religious activities as essential.
Rather than protecting religious liberty, the facial neutrality rule allows governments to unnecessarily restrict religious activity. The fact that restrictions on religion may be unconstitutional if they particularly target religion is cold comfort to the religion whose activities are restricted by facially neutral rules. Worse yet, Justice Sotomayor’s analysis suggests that, at least theoretically, a government’s attempt to accommodate religion might be confused for religious animus, thus triggering court review. This fact may make governments even leerier about providing religious accommodations. Additionally, reviewing whether a law targets religion provides an unnecessary opportunity for courts to treat religion differently based on their own attitudes toward the politicians, policies, or religions involved. Justice Sotomayor pointed out in Roman Catholic Diocese that in Trump v. Hawaii (2018) the Court declined to take out a closer microscope to evaluate President Trump’s “facially neutral” travel restrictions, despite the president’s many statements that indicated that he was targeting adherents of the Muslim faith. In contrast, the Court indicated that Governor Cuomo’s statement that he would close ultra-Orthodox Jewish institutions if they did not “agree to enforce the rules” was sufficient reason to find that New York had targeted the ultra-Orthodox community.
Were Justice O’Connor’s rule in place, the evaluation of New York’s coronavirus regulations would have been very different. Justice O’Connor’s rule would establish that people have the right to practice their faith unless their doing so significantly impinged on a compelling state interest. In this case, the nine Supreme Court Justices might have agreed that New York’s regulations went too far since it is hard to believe that a thousand seat church or synagogue needs to be limited to ten occupants. On the other hand, some or all of the Justices might have decided not to second guess New York’s decision to limit the dispensation it gave to religious gatherings in red zones. Either way, the Court would have dealt with the important balance between public policy and religious freedom, rather than asking the tangential question of whether Governor Cuomo had targeted religious activity.
The facial neutrality standard ought to be abandoned. Our Constitution should be understood to permit a law’s impact on religion only when that impact is essential to carrying out the government’s compelling interests. Courts should ensure that reasonable accommodations are provided for religious practices and that such accommodations are equally available to less popular religions.
One could argue that requiring such accommodations might make religious activity favored over other activities that would not benefit from the same accommodations. But this “favored” treatment is a feature, not a bug. As Justice O’Connor wrote in Smith, “the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a ‘constitutional nor[m],’ not an ‘anomaly.’” Such review of laws impacting religion would not be an indication of favoring religion but a recognition that religious activity has a unique need for, and constitutional entitlement to, protection from government intrusion.
Rabbi Noah Gradofsky, a resident of Merion Station, is a Senior Associate Attorney at Law Offices of Jan Meyer and Associates, P.C.. He serves on the board of Lechu Neranena of Bala Cynwyd and as Vice President of the Union for Traditional Judaism. The opinions stated are his own.
Suggested citation: Noah Gradofsky, A Hollow Victory for Religious Liberty, JURIST – Professional Commentary, December 15, 2020, https://www.jurist.org/commentary/2020/12/noah-gradofsky-religious-liberty/.
This article was prepared for publication by Brianna Bell, a JURIST Senior Editor. Please direct any questions or comments to her at commentary@jurist.org.
