Public health versus religious liberty

Since Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, the U.S. Supreme Court has sharply intensified its review of COVID-19 public health orders alleged to violate the free exercise clause of the U.S. Constitution. Championing this development, Justice Neil Gorsuch has broadly condemned "a particular judicial impulse to stay out of the way in times of crisis." Yet neither Justice Gorsuch nor a majority of his colleagues have stepped forward to insist that the government uphold its constitutional duty to affirmatively protect the rights of voters, detainees and inmates. Instead, a majority of the court has focused solely on whether to invalidate certain public health measures said to offend rights of religious free exercise. And the majority's evolving approach to these issues poses a risk that the court will base its constitutional rulings on impressionistic, unscientific beliefs about epidemiology.

To start with first principles, most of the court agrees that some deference to elected officials is warranted in evaluating COVID-19 orders. As Chief Justice John G. Roberts, Jr. affirmed in May 2020, and as Justice Brett Kavanaugh echoed in November 2020, "the Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States." South Bay United Pentecostal Church v. Newsom, 2020 DJDAR 4844. But judicial deference has its limits. All nine justices strongly support the proposition that public officials cannot discriminate against religion without surviving rigorous review.

As a result, the most crucial question in the court's recent COVID-19 cases is whether a public health order is discriminatory. Yet that question only raises others. What does it mean for a public health order to discriminate on the basis of religion? And how does the court's commitment to deference square with its skepticism of laws deemed discriminatory?

In this realm, the court varies from the ordinary framework for identifying and defining discrimination. Instead, the relevant test is supplied by Justice Antonin Scalia's landmark decision in Employment Division v. Smith (1990), which held that government action complies with the free exercise clause when it is "neutral and of general applicability" -- even if it may incidentally result in burdens on religious activity.

Applying Smith, the court's recent COVID-19 cases have focused on the concept of "neutrality." And across these cases, the court has generally emphasized a single question: Is the government subjecting religious activity to greater restriction than secular activity posing comparable risks of spreading COVID-19? In other words, where religious and non-religious activity are equally risky, is the government nonetheless imposing a greater regulatory burden on religious activity? If so, the court has suggested, then Smith's neutrality mandate is violated.

This standard is extraordinarily protective of religious freedom. Although described as a neutrality requirement, it effectively privileges religion: government must subject religious activity to the lowest level of regulation applied to any form of secular activity deemed comparable, even if the majority of comparable secular activity is actually subject to much stricter regulation. Hardly any other constitutional interests -- even those deemed fundamental to our legal order -- enjoy such pride of place.

In operationalizing this rule, however, the court has stepped into treacherous waters. The linchpin of the court's approach is determining exactly which religious and secular activities pose "comparable" risk. But as scientists have demonstrated, many ordinary activities pose some level of risk, with those levels fluctuating over time, or from state to state, in response to a host of context dependent variables. Even superficially similar activities may differ in slight but significant ways; going to an indoor prayer service, with large groups of people standing in close quarters and singing for extended period, may be much riskier than a visit to Best Buy, an appointment with a lawyer, or a trip at the liquor store to stock up on wine. And not all regulation operates the same across every context: a single COVID-19 order may have very different effects in slowing the spread of the virus in two otherwise comparable settings.

Some justices have treated all that complexity as a mere distraction. Justice Gorsuch, in particular, is quick to declare that states have fallen short; he has riddled his writings with lists of activities that are (to him) obviously just as risky as services in houses of worship subject to COVID-19 orders. His analysis is uncluttered by evidence and citations; at times, it has flatly defied district court findings, scientific consensus, and amicus briefs filed by medical experts. He seems content to rely on his own intuitions, and appeals to common sense, in determining which activities qualify as "comparable" while testing COVID-19 orders for discrimination under the free exercise clause. Justice Samuel Alito has followed a similar course, joined at times (though in more nuanced opinions) by Justice Brett Kavanaugh.

In contrast, Justice Sonia Sotomayor has warned that the court plays "a deadly game" by "second guessing the expert judgment of health officials about the environments in which a contagious virus ... spreads most easily." Justice Stephen Breyer has further emphasized that "[t]he elected branches of state and national governments can marshal scientific expertise and craft specific policies in response to changing facts on the ground. And they can do so more quickly than can courts." On this basis, Justices Sotomayor and Breyer -- and the Chief Justice -- have explained that the court must tread carefully in determining which secular activities are truly "comparable" to regulated religious activity in assessing compliance with the free exercise clause.

The court should heed those calls for caution. Nobody -- not an elected official, not a public health expert, and certainly not a generalist judge -- should make decisions based on faulty beliefs about the spread of COVID-19. Such law office epidemiology is dangerous. While the court has an important role to play in reviewing COVID-19 orders -- especially those that apply to "houses of worship" or otherwise draw religion-based lines -- it shouldn't second-guess officials based on anecdotes or hypotheticals better suited to a casual debate society than a court of law weighing matters of life and death. 