Roman Catholic Diocese v. Cuomo

The hosts discuss Roman Catholic Diocese of Brooklyn v. Cuomo, a recent case about COVID-19-related restrictions on religious gatherings. In it, the Supreme Court struck down hard capacity caps on religious gatherings in high-risk areas. The case has already spawned more challenges to pandemic-related restrictions on religious gatherings and likely foreshadows the expansion of legal exemptions for religious groups.

A podcast where we dissect and analyze the Supreme Court cases that have coalesced like that garbage island in the Pacific Ocean; together a monument to the sheer scale of man's folley


0:00:03.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon and Michael are talking about a very recent case in which the Supreme Court blocked New York Governor Andrew Cuomo from restricting the size of religious gatherings because of COVID-19.

0:00:20.6 [Archival]: This was a 5-4 decision, it was an injunction that was issued late last night.

0:00:25.5 [Archival]: The majority said houses of worship had been singled out for tougher treatment, while the dissenters said that government needs leeway when it comes to public health in a pandemic.

0:00:34.7 Leon: The decision has already spawned new complaints about pandemic-related restrictions nationwide and it likely foreshadows the expansion of legal exemptions for religious groups.

0:00:43.7 [Archival: Justice Amy Coney Barrett, the newest Justice, voted to block the restriction along with Justices Thomas, Alito, Gorsuch and Kavanaugh.

0:00:52.1 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:01.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have coalesced like that garbage island in the Pacific Ocean, together a monument to the sheer scale of man's folly. I am Peter, I'm here with Rhiannon.

0:01:21.2 Rhiannon: Hi.

0:01:21.3 Peter: And Michael.

0:01:22.3 Michael: Hey, everybody.

0:01:23.8 Peter: Today's case is Roman Catholic diocese of Brooklyn v. Andrew Cuomo, the Governor of New York.

0:01:31.3 Rhiannon: Ooh, who do we like more?

0:01:34.0 Peter: This is a fresh one. The opinion dropped the night before this past Thanksgiving, the Court held in a 5-4 decision, where John Roberts joined the liberals in dissent, that New York's restrictions on certain large religious gatherings were unconstitutional under the First Amendment because they violate the right to the free exercise of religion. This case is a big deal for a few reasons. Most immediately, it signals a shift on these COVID-related court cases. Before RBG's death, the liberals were upholding most of these COVID restrictions, with John Roberts joining their side. With RBG being replaced by our wide-eyed buddy Amy Coney Barrett, these cases are now going in the other direction.

0:02:17.5 Peter: More holistically, this case is the first of what are likely to be many more in which the conservatives on the Court hold a very expansive view of what constitutes protected religious activity under the First Amendment. We are in a new era of unfettered special treatment for religious institutions, and this case seems like a good indicator of just how emboldened the conservatives feel about their hold over the law.

0:02:43.7 Rhiannon: Yes.

0:02:45.0 Michael: Yeah.

0:02:45.9 Peter: It's also a good reference point for how high the brain rot among conservatives goes. I think a lot of people view the most aggressively anti-science positions of the electorate, like COVID denialism and so forth, as like the province of the less educated GOP base. But here you have the conservatives on the Supreme Court, supposedly the tippy top of the conservative intellectual brain trust, essentially replacing the perspectives of medical experts with their own.

0:03:17.0 Michael: Yeah.

0:03:18.2 Peter: As we've noted before, the degree of separation between right-wing talk radio and the like, and the ostensibly foremost minds of American conservatism is much, much smaller than you might think. Since the pandemic started, you've probably seen hundreds of viral videos where some lunatic in a grocery store is spouting off about the tyranny of COVID restrictions. Just imagine that that lunatic was associate Justice Neil Gorsuch, that he was marginally more eloquent, and you're beginning to understand this case.

0:03:54.0 Rhiannon: That's right, yeah.

0:03:54.9 Michael: That's right. Before we get started, I just want to note, like Peter said, this is our sort of first post-Ginsburg 5-4 decision. And so I do think it's worth taking a minute to contemplate that. I don't want to trash a dead woman who was justifiably an icon to so many people, and I don't want to rehash everything from our episode about her, but I do think as you listen to this case it's probably good to remind yourself that her hubris is part of what brought us here, and the result is going to be that a lot of people probably needlessly die. That's like a very predictable outcome of this case. Luckily, it seems like vaccines are on the way, and so that might dull the impact, but the broader point is that there are real consequences to the decisions people in power make, and this is a particularly poignant and visceral reminder of that.

0:04:53.1 Rhiannon: Yeah. Michael, I'm not letting it slide, your little flex on Amy Coney Barrett just now, that you pronounced poignant correctly. Congratulations.

0:05:00.5 Michael: That's right.

0:05:04.0 Rhiannon: So I can lay down some background for us today. Just to ground us in a bit of reality before we talk about what Andrew Cuomo and the State of New York were trying to do in this case and what got shut down. We all know that we are living through or trying to live through a pandemic right now, and that in the United States, the federal government has been more or less utterly ineffective at keeping us safe, and that it's been left to individual states and their respective public health officials by and large to figure out what to do and how to manage this crisis.

0:05:40.0 Michael: Yeah. I was going to say, this is the first moment where I really get why the Articles of the Confederation did not last. If we had six more years of this where it'd be... We're starting over from scratch. This just doesn't work. You need a strong federal government...

0:05:58.2 Rhiannon: Yes, excellent point. So this fucking virus... The first thing we know about this virus is that it's deadly, it's alarmingly so. And then the second thing we know is how it's passed around, like how people transmit and contract the virus. It's passed person to person, typically through the transfer of respiratory droplets, obviously from coughing or sneezing or talking, and this transmission happens quickest indoors in enclosed spaces. A recent Stanford study, in fact, found that on average across metro areas in the US, restaurants, gyms, hotels, cafes and religious organizations produced the largest predicted increases in infections when those places were re-opened and people were allowed to congregate again in those spaces.

0:06:46.1 Peter: And kissing booths.

0:06:50.5 Rhiannon: Yeah.

0:06:50.6 Peter: Please God.

0:06:54.9 Rhiannon: And of course, we are now experiencing a surge in COVID numbers that scientists and public health officials predicted would happen as the result of colder winter months, students going back to school, all of it. So in response to all of this, New York Governor, Andrew Cuomo, for his part, has issued dozens of executive orders since the initial outbreak of COVID 19 in March, but the one at issue in this case was a specific order issued just in October. This measure was prompted by surging cases in certain neighborhoods of New York City.

0:07:27.9 Michael: Right. Some of them included Orthodox, like Hasidic Jewish neighborhoods.

0:07:33.3 Rhiannon: And what it did was allow the Governor to designate specific areas as red zones, orange zones and yellow zones. So in a red zone were areas where concentrations of COVID cases were highest, and in those zones, the Executive Order capped attendance at religious services at 10 people; in an orange zone, the maximum capacity allowed in houses of worship was 25 people. So importantly, though, businesses that were deemed essential were not ordered to have the same capacity limits, so like for example, a hardware store in a red zone didn't have the maximum 10-person occupancy, but large indoor gatherings, importantly, like concert venues, those are completely shut down, whereas religious gatherings are allowed, but at these kind of limited numbers, depending on what zone they are in.

0:08:24.0 Rhiannon: So this made some of our more pious neighbors angry and two religious organizations, the Roman Catholic diocese of Brooklyn, as well as Agudath Israel of America, applied for an injunction so that the capacity limits from Cuomo's Executive Order would not be enforced against them, and they could meet in larger groups in their churches and synagogues respectively. So this case makes it to the Supreme Court on the shadow docket, we've mentioned before, but the shadow docket refers to the body of legal orders that are issued by the Supreme Court outside of the cases for which the Court hears oral argument and issues its formal written opinions.

0:09:07.2 Rhiannon: The shadow docket orders, usually they can be peripheral or purely procedural, kind of technical legal matters, so if a party is asking for additional time on a case, it would be on the shadow docket and the Supreme Court should just quickly issue an order, but some orders from the shadow docket decide kind of contentious and urgent matters. The important thing here, I think, is that usually orders from the shadow docket are issued without additional written justification from the Justices. Here, though, we did get written opinions.

0:09:43.5 Michael: A lot of them.

0:09:46.5 Rhiannon: Yeah, and that's significant because it could be that the Justices have heard like recent criticism about orders coming down from the shadow docket without written reasoning, and because the Justices are all kind of signaling what might be done on future cases that look like this, particularly with regard to freedom of religion and free exercise cases.

0:10:06.6 Peter: So the legal question is whether these restrictions violate the First Amendment right to the free exercise of religion. And the main thing to remember here is that if something only coincidentally limits the exercise of religion, that is generally not considered a violation of the First Amendment. So if the government says no crowds of 10 or more anywhere, that's pretty much never going to be a violation of the free exercise clause because it impacts everyone equally. The only question here is whether this order is sort of unfairly targeting religious institutions or religious people without adequate justification, and the Court, of course, says that it is.

0:10:45.9 Peter: One notable thing here, this is a per curiam decision, which we have talked about before, but essentially means that no single Justice put their name on the majority opinion; instead, it is sort of symbolically presented as if it is the opinion of the Court itself. Naturally, that symbolism is in and of itself meaningless bullshit, but it's important because it's a signal that the conservatives believe that they are making a statement here. It's a presentation of a unified front, and it's also important because it means we don't really know who wrote the majority. Gorsuch and Kavanaugh both filed separate concurrences, and I think if you look at the writing style, there's enough there to say that it was probably Amy Coney Barrett herself.

0:11:30.0 Michael: I think so too. It doesn't feel like an Alito opinion.

0:11:33.8 Peter: No, it doesn't. It has some of the indicators of her writing style, but again, we're just guessing. So on to the case itself. The central argument of the majority opinion is very simple, the order in New York limits attendance in religious houses of worship to, for example, 10 people in designated red zones, but it does not apply attendance limits to other businesses in the same zones, so if you're a hardware store in that red zone, you could technically have more than 10 people in the store. And the Court says that that is essentially singling out religious institutions in an unconstitutional fashion. I don't think you need to be a legal genius to see the counterpoint to this, which is that religious services are not really comparable to other businesses, people sit down generally in groups, generally for long periods of time, often singing and chanting and shit, that is uniquely high risk.

0:12:30.9 Michael: Speaking in tongues, if you're at one of Coney Barrett's.

0:12:34.4 Peter: Who knows what these people do. And the state order entirely prohibits similarly large indoor gatherings like concerts. Like Rhi said, religious services actually get favorable treatment under the law compared to those secular gatherings. Gorsuch files a concurrence here where he is extremely sanctimonious about this point.

0:13:01.4 Rhiannon: Gosh.

0:13:01.5 Peter: He points out that there are no capacity restrictions on hardware stores or liquor stores or bike shops, so he says, "According to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine or shop for a new bike," the paragraph ends with "who knew public health would so perfectly align with secular convenience." That is obviously a complete dodge of the fact that none of those businesses operate anything at all like a church or synagogue.

0:13:30.6 Rhiannon: Exactly.

0:13:31.3 Peter: No one hangs out in those stores for two hours conversing and belting out hymns and shit. I am a man in my 30s, I drink alcohol, big fan. When I tell you that never in my life has someone tried to talk to me in a liquor store, I am not exaggerating.


0:13:48.9 Michael: Absolutely not.

0:13:50.1 Peter: If someone who was not an employee approached me in a liquor store, I'm immediately fight or flight. Just high alert right away.

0:13:58.3 Rhiannon: This is unnatural.

0:14:00.4 Peter: They are not comparable situations. Comparable situations would be public speaking events or concerts, and those are banned.

0:14:07.4 Rhiannon: Exactly.

0:14:07.9 Peter: So what's the fucking complaint here? I think that Gorsuch just wanted to use this opportunity to make one of those sorts of decay of society points that conservatives always bust out, like, "Oh, you can't go to church, but you can buy a beer. You can't pray in schools anymore, but the substitute teacher will put on Love Actually and you have to watch that." It's just like fodder for small minds.

0:14:33.2 Michael: Exactly. It's like Fox News brain. It's playing on the caricature that like a lot of suburban and rural residents have of cities, the same people who would tell you on Twitter or Facebook that New York City's a hell hole during the BLM protests. And you'd be like, "It's not. I'm here. I'm walking in the bodega and nobody's assaulting me." They'd be like, "No. I know for a fact, it's basically a war zone." Those are the people that this is written for. It's like, "Look, they're fucking drinking MD 2020 and not going to church, 'cause they're secular heathens." That's what this opinion is.

0:15:18.8 Peter: Absolutely. And so all through one per curiam opinion and two concurrences, the conservatives do not once try to address the fact that religious services involve people sitting, speaking, singing in a closed space for prolonged periods of time, where none of the businesses they call comparable share that feature. And that's sort of the bottom line here, the entire position of the conservatives rests on the idea that religious services are comparable to these other types of businesses, from grocery stores to department stores. And if you accept that those are fundamentally not comparable for purposes of analyzing COVID risk, you have to reject the Court's argument. I think it's as simple as that.

0:15:57.4 Rhiannon: Exactly. Yeah. A really important piece of this, I think, is that New York's restrictions are policy decisions made with significant input from experts, and those experts continue to back the restrictions. The district court in this case did extensive fact-finding to establish that the restrictions were backed by medical expertise. The American Medical Association filed a brief that was in support of New York's position, and up against that is basically five dipshits on the Supreme Court, just sort of eye-balling whether they think these restrictions make sense or not. And sorry, that's not the same as what the doctors and scientists are saying.

0:16:35.6 Michael: Right. Right. It's like the old Onion article, right? I think war on Iraq will unleash chaos in the Middle East first. No, it won't. [laughter] That's this opinion in a nutshell.

0:16:49.0 Peter: So the legal analysis does not end there. The Court has determined that religious institutions are being treated differently, and now they have to evaluate whether that is justified. And they do that by applying a strict scrutiny analysis, meaning they determine whether the restrictions are narrowly tailored to fulfilling a compelling state interest. If that doesn't sound like it actually means anything, congratulations, you are basically a lawyer now.

0:17:18.1 Rhiannon: The Court points out that there's no evidence that the churches or synagogues in question have contributed to the spread of COVID. I'm like, "Do you get how fucking viruses work?" Large crowds gathering in close proximity is going to be a high-risk situation pretty much anywhere. So what is it that we're talking about here?

0:17:40.2 Peter: Right. If you buy a gun, do you need to see it shoot someone to know it's dangerous or is it enough to know how guns work?

0:17:48.7 Rhiannon: Yeah. Right. Right. Exactly.

0:17:50.7 Peter: So the Court then says that the order could have been tailored to the size and capacity of the relevant buildings, which I think is fair enough, they could have done capacity restrictions. I think there's a good argument that capacity restrictions make more sense than pure head count caps, so fine. But in my view, that's just sort of an irrelevant argument because there's zero reason to believe that religious institutions are being singled out and unfairly targeted. It would also be fine to just ban them altogether like concert venues, but instead, they were given this sort of additional privilege of, "You can have 10 or 25 or whatever people." So even if you believe that the hard caps on capacity don't make much sense, that as conservatives so often say, doesn't necessarily mean it's unconstitutional.

0:18:36.2 Peter: So we noted that two concurrences are filed here, one by Gorsuch, one by Kavanaugh, both of them a little bit crazier than the per curiam opinion. The only thing I'll say about Kavanaugh's concurrence is that it substantively adds almost nothing to the other opinions, and this is like the third or fourth time I've thought that about a Kavanaugh concurrence. My boy just, he loves to file a concurrence.

0:19:00.5 Rhiannon: He loves to repeat what we just read and just put his name on it at the top.

0:19:06.1 Michael: Yeah. But put it in his own voice. No, that's... Peter made this point when we were prepping for this episode, it was like this moment of clarity for me in understanding Brett Kavanaugh, because like in any fraternity, there's like a dude, who he drinks two beers and then cannot shut the fuck up. He just loves the sound of his voice and will just fucking yammer on, and I know that guy well because it was me in my fraternity.


0:19:36.7 Michael: So, no judgment on Brett on that point, but it's like a thing where, once you see it, it's like, "Oh, yeah, I know this guy."

0:19:45.2 Rhiannon: That's him.

0:19:46.0 Peter: Yeah.

0:19:46.3 Rhiannon: And even if you weren't in a fraternity, Brett Kavanaugh is exactly the guy that I had intense culture shock over 1L year. You know this person from 1L con law or civ pro. It's a white man who, for his entire life, has been told things like, "Oh, you're really good at debate, you should go to law school."


0:20:08.8 Rhiannon: They've just been stoked with that kind of praise their entire life. And so, they get a platform, and they can't say no.

0:20:16.1 Michael: Yeah.

0:20:16.3 Peter: Yeah. Yeah.

0:20:16.9 Michael: That's right. I was told I was good at debate and I should go to law school.


0:20:18.7 Rhiannon: Yeah, I know your kind.

0:20:24.9 Peter: We already talked a bit about Gorsuch's concurrence, ranting about what he sees as secular privilege. But probably the most notable thing about it is just how sanctimonious it is, generally. The concurrence starts off with the line quote, "Government is not free to disregard the First Amendment in times of crisis."

0:20:44.4 Rhiannon: Okay.


0:20:47.2 Peter: And the tone of his concurrence is all along the same lines. His position is not just that they're right, but that any other position is clearly disregarding the Constitution. And that's just fucking stupid. You could take that tone if the First Amendment said, "During pandemics, you can't put capacity restrictions on churches." If that's what it said, I'd be like, "You got me, Neil. That's right."

0:21:12.0 Rhiannon: Yeah. [laughter]

0:21:13.6 Peter: But the First Amendment says that it protects the free exercise of religion. Every single person who has ever studied it understands that that entails a massive gray area and requires a balancing act between the freedom to engage in specific religious activities and public policy needs. I think the Court's position here is bad and wrong, but even I will tell you that there is no objectively correct answer here. And to act as if there is shows a wild amount of hubris and over-confidence. And I think it's a good sign that we are not about to see a restrained conservative Court.

0:21:49.3 Rhiannon: Really good point.

0:21:50.0 Michael: I think that's right.

0:21:51.0 Rhiannon: Yeah. So, one of the big stories here is that Roberts joined the liberals in dissent. And Roberts' dissent dodges the merits of the constitutional question. He's making the argument that the case is moot because the churches and synagogues in question are no longer in the designated red zones, and therefore, the hard attendance caps no longer even apply to them. Roberts' argument is that we should not be issuing an opinion here where the situation can still be changing day-to-day. This is classic Roberts equivocation, trying to dodge the touchier issue. Sometimes conservatives, and the occasional centrist, criticize us for not giving more credence to the conservative side of the argument. And generally, I would like to respond, "Go fuck yourself." But...


0:22:37.8 Michael: That's right, that's right.

0:22:39.1 Rhiannon: But I'll give you this. I think Roberts is wrong, and this case is not moot. It's true that the churches are no longer in the red zones, but that can easily change at any time. And in any event, the case is relevant to other houses of worship. So, calling this moot is just ticky-tack procedural bullshit. And Roberts is kinda being... Flat-out, he's being cowardly, because he doesn't want to address the real issues here.

0:23:03.7 Peter: Right, right. Yeah, Roberts and Gorsuch get into it a little bit in their opinions. Some of it's very technical and dry, but Roberts calls out Gorsuch for the condescending language he uses. Roberts' response is very weak. He just said that dissenters, quote, "View the matter differently, after careful study and analysis, reflecting their best efforts to fulfill their responsibility under the Constitution."


0:23:26.9 Peter: And this reminds me very much of the broader Court's interaction with Antonin Scalia, who Gorsuch is trying to emulate to what I would consider to be an embarrassing degree.


0:23:38.7 Rhiannon: Yes.

0:23:38.9 Peter: Scalia was famously venomous when he disagreed with his colleagues, veering into outright disrespect without much hesitation at all. And his colleagues' response was generally to ignore his histrionics and maintain a measured tone no matter what he said. In my view, that approach was catastrophic, leading to a generation of conservative attorneys like Neil Gorsuch, who believed that Scalia was untouchable, that he was intellectually superior, that he was revered and feared by his colleagues. His sort of like boisterous over-confidence went unaddressed for the duration of his career, and it helped build a marketable brand, not just around him, but around his type of conservative jurisprudence. Scalia was never as sharp as he thought he was. Gorsuch is even less sharp. I would suggest that someone on the Court put him in his place before history repeats itself here.

0:24:36.1 Rhiannon: Right, yeah.

0:24:37.0 Michael: I think that's right. I do want to say, I think Roberts is being a little pragmatic in here, and that he is looking at the imminence of a vaccine and saying, "Look, we can just wait this out." [chuckle] "Just let the public health officials do what they want to do for a few more months, and then all these issues will be gone. And we won't potentially be responsible for tens of thousands of unnecessary deaths." Like, "We can take that hit. We can grit our teeth and bear it, and let the church restrictions go on till April." It's not the end of the fucking world. And he's saying, "If I have to engage in some legal bullshit and say this is moot, that's fine."


0:25:17.0 Michael: It's better than the alternative, which is, making it much harder to control the pandemic.

0:25:23.1 Rhiannon: Yeah, totally. So, turning to the other dissent... So Justice Sotomayor writes a dissent. And predictably, it's well-written, it's smart, it goes through an easy to follow logical process. And she uses accessible language to explain why this case is basically turning doctrine on its head. She highlights how religious institutions are being singled out here for preferential treatment, like we said before, which is why the Court has no grounds for applying heightened levels of scrutiny to these laws. She says, quote, "Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions even when faced with a crisis as deadly as this one. But those principles are not at stake today, the Constitution does not forbid states from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives."

0:26:27.0 Michael: Right, and I'm especially glad that she points out that the conservatives here are entirely full of shit on a particular issue which is related to statements from public officials, because one thing the majority tries to do here is it cites to statements from Andrew Cuomo talking about the spread of COVID in Hasidic communities, and the majority wants to say this is the evidence that the regulations and the red zones and the orange zones were designed to target religious groups, and Sotomayor rightly notes that, look, there's a case directly on point about this question, Trump v. Hawaii, the Muslim ban case, in which the conservatives flat out said that Donald Trump saying that they're trying to ban all Muslims from entering the country shouldn't in fact, make the Court suspicious that there's religious discrimination going on. That was the holding of that case.

0:27:24.7 Michael: If you haven't listened to our episode on Trump v. Hawaii I suggest you go back and do so now and then have a heart attack when your blood pressure just skyrockets, knowing how they're going to do a complete about-face on this issue. I think calling people hypocrites is kind of weak sometimes, but in this case, it's just like you can't avoid how obviously, bullshit it is. I do want to say also, though, that I thought her dissent was a little weak on what I think is an important point, which is that a lot of people are going to undoubtedly die because of this decision. If she had said that, I'm sure the majority and concurrences would have lambasted her as engaging in overheated rhetoric and demagoguery and saying it's all speculation and blah, blah, blah...

0:28:13.0 Michael: But it's not any of those things. It's just a fact and she should have stated it plainly, conservatives are killing people with this decision. And if they think that's the price we pay for religious freedom, you know, they should say so openly and honestly. Instead, she sort of dances around the point twice, once in the line Rhi quoted above about the regulations "saving lives" and also when she says Justices for this court play a deadly game in second-guessing the expert judgment of health officials, blah, blah, blah, blah blah. And it's like, come on, don't say it's a deadly game, just fucking say it, say what everybody knows. I just think it's weak. I think this is just going to cost a lot of people their lives, many of whom didn't attend religious services, but just got stuck ringing up some reckless asshole getting groceries a couple of days after going to a crowded church, and those people deserve something more from the dissent.

0:29:11.4 Rhiannon: Yeah, that's a great point. And I want to make a point too about the politicization of the shadow docket. I said up top that it's significant that this is a shadow docket case, because it could be that the Justices are hearing criticism about all these important decisions coming down without any sort of written rationalization or explanation of who comprise the majority, but I don't want to discount like Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch. This is a victory lap.

0:29:40.5 Michael: Absolutely.

0:29:42.0 Rhiannon: They are deeply religiously conservative and they've switched the make up of the Court, and they won here, and there's no reason for three separate opinions saying the same thing, and so we shouldn't discount like the extent to which these weirdos who represent a deeply and idiosyncratically conservative legal mindset took advantage of an opportunity to do culture war theatrics on a shadow docket case on which they didn't hear the merits. In fact, it's unusual to have even one written opinion in a case like this, so the usual procedure for a case on the shadow docket is that the Court just gives a thumbs up or a thumbs down based on whether the case when it is heard is likely to win or lose on the merits. These are mini Scalia freaks who consider themselves genius little proteges or whatever, and they're just flexing, they're just flexing in the same way that Donald Trump might give some sort of token speech or a photo opportunity in front of a church to speak to his base.

0:30:44.0 Peter: Right, right. They're stunting on the liberals...

0:30:47.1 Rhiannon: Exactly.

0:30:47.6 Michael: You write those two concurrences to say, and fuck you too.

0:30:52.4 Rhiannon: Exactly.

0:30:52.8 Peter: I want to talk a little bit about the First Amendment more broadly. This is a case about the free exercise of religion, but that's only one of two clauses in the First Amendment concerning religion. The other is the establishment clause, which says that Congress shall make no law respecting an establishment of religion, and there's sort of an inherent tension between these two clauses, because they are requiring that the government afford people the right to engage in religious practices, but not go so far as to actively endorse or facilitate those practices. And the irony is that the Court's holding here borders on requesting that states violate the establishment clause by going out of their way to cater to religious institutions.

0:31:35.1 Peter: New York made an active effort to treat religious services equally or better than what it felt were comparable businesses and venues, and the Court found that that still wasn't enough, and that's where I think we're going to see First Amendment jurisprudence go where the Court champions the free exercise clause while marginalizing the establishment clause, forcing governments to consistently draft laws that are overtly designed to accommodate religion rather than drafting laws that are indifferent to religion, which is what the First Amendment should require. And I don't want to get too deep in this, but there was a case that was written by Scalia himself.

0:32:12.6 Rhiannon: Yes.

0:32:13.9 Peter: Employment Division v. Smith, I think, from 1990 or so, where the Court held this, again, this is Scalia writing it, saying that laws are supposed to be indifferent to religion. If something just so happens to coincidentally negatively impact a religion, that's not against the First Amendment. I believe that there is a good chance that we see that functionally overturned by the Court over the span of the next several years.

0:32:39.5 Michael: I think that's right. And switching gears a little, Peter and Rhiannon have laid out the law really well, and at the danger of just reiterating what they've said, I'm just not convinced that the First Amendment has anything meaningful to tell us here. Like if houses of worship were being outright shuttered while people were out at concerts and shit or there were stricter limits for Hasidic Jews than for Christians, sure, okay, yeah, that sounds like the right scenario for the First Amendment, but what we're talking about here is whether the capacity limits, which are presumptively legitimate, are too strict, and whether they should have used a percentage of total capacity rather than a hard count. The Court is literally micro-managing the Governor of New York's response to a catastrophic pandemic, that at the time of this recording afflicted over 650,000 New Yorkers, killing over 34,000 of them, and what they're saying is, we get to nitpick that response to the pandemic. It's profoundly anti-federalist, it's profoundly anti-democratic, it's just absurd, and I think doing it under the guise of the First Amendment is a joke.

0:33:56.5 Peter: Absolutely. So final thoughts, one of the best things about this for me, was that the Pope immediately published an op-ed supporting restrictions like these...

0:34:07.0 Michael: Yeah, it ruled. [laughter]

0:34:07.1 Peter: And very expectedly, the reaction of conservative Catholics has mostly been to reject the Pope. You are an adult in a religion where the central principle is that there's this one dude who is essentially the infallible mouthpiece of God, part of a line of succession that started with Jesus's appointment of St. Peter himself, and then that dude's like, "Hey, maybe try not to get other people sick," and the Republicans are like, "Who's this fucking guy?"


0:34:39.9 Rhiannon: "Who died and made you king?" and it was like, "Ah, literally Jesus."


0:34:50.0 Peter: Literally, you could just watch on Twitter and in op-eds, etcetera, all of these conservative Catholics just slowly crawling towards Protestantism because the fucking Pope didn't fully endorse the conservative political position on this. I think that touches on something that's very important to this country's conception of freedom of religion, and that is the merger of institutionalized religion and politics in this country. This is something that has been researched and written about and talked about fairly extensively, but even a casual observer can see how many hot button political issues are intertwined with religion, to a point where disentangling them almost seems like a fool's errand, it's nonsensical.

0:35:37.3 Peter: You can't have a discussion about abortion or LGBT rights that is either partisan or religious, it's inherently both. And this stems at least in part, from a concerted effort by monied interests on the right to push religious issues in the political sphere and political issues in the religious sphere, and the result is a milieu where the basic conservative position is that the First Amendment's protection of religious practices functions to protect their political viewpoints.

0:36:09.0 Peter: When you see someone say that they don't want to bake a cake for a gay couple, or that they're concerned about working with trans people, or in this case, thinks that their right to go to church in the pandemic should not be mitigated, is that really about religion? To use the religion at issue here, as an example, all of those beliefs are certainly held by some Catholics. They might be shared by many or most conservative Catholics, but are they shared by all Catholics? Or is it more accurate to say that it's the shared belief of a subset of Catholics who are, not coincidentally, politically conservative?

0:36:45.3 Rhiannon: Ding, ding, ding.

0:36:46.5 Peter: Isn't the determinative factor, then, their politics rather than their religion? And look, I'm not saying that as if it's definitively true, this is a gray area for sure, but the Court has essentially allowed many almost nakedly partisan beliefs to parade themselves around as if they are purely the manifestation of religion, when anyone who's looking closely can see that the truth is not that simple.

0:37:11.3 Michael: That's right.

0:37:12.2 Peter: So if you doubt us about the sort of potential scope of this decision, know that a case has already been filed in Kentucky challenging the closure of religious schools due to COVID. Note that all schools are closed in Kentucky and they are simply saying, "Well, that shouldn't include religious schools." And to me, that signals that the conservative bar is strategizing and thinking about how far they can stretch this, and that is clearly dangerous.

0:37:48.2 Rhiannon: Right, and a more concerning case came out of California where a church was asking the Supreme Court for emergency relief against the California COVID restrictions, and that case actually has already been sent back from the Supreme Court to California, basically in light of this opinion, which signals that the Supreme Court is telling lower courts in California to side with religious organizations like they have here.

0:38:15.9 Michael: It's sending a signal to churches, to lawyers, to conservative advocacy groups, and most importantly to lower courts that the Court no longer has much appetite for regulations at all on religious institutions. And this case is in a lot of ways an easier case than the more neutral regulations that were upheld back in the spring. And so I think we should consider this a green light for right-wing conservative religious groups to challenge COVID restrictions anywhere, and a clear signal to courts that they should be entertaining those challenges seriously. And that's going to result in a lot more people getting sick in and a lot more people dying. And I'll also just say, I feel like there's more urgency to this stuff now that the vaccine is imminent.

0:39:16.6 Michael: So it's not like every single day you can delay opening up of establishments like churches and synagogues or gyms, if you can, or whatever. I just feel like district court judges should just be like, "Fuck you." Like, alright, we'll reconsider in light of it, and then make some fine distinctions between these regulations and the regulations in New York and just say, "These are fine," even in light of that decision, and I'm sure there's going to be like expedited review and all that stuff, but that stuff still takes time, and they should just delay, delay, delay. And that could save lives.

0:39:57.1 Rhiannon: Absolutely.

0:39:57.4 Peter: Absolutely. And, to take a step further back here and talk about the implications of these broad conservative conception of the First Amendment protections of their religion and speech rights, the Eleventh Circuit just a couple of weeks ago struck down bans on conversion therapy. Conversion therapy is, if you don't know, the extremely anti-scientific and deeply morally disgusting practice of trying to convert gay children to become straight using what is essentially psychological torture. The Eleventh Circuit said that conversion therapy was protected as free speech under the First Amendment, and, that's not a freedom of religion thing, at least in this case, but, it goes to show exactly how they use the First Amendment as a weapon for their cause, just disgusting shit.

0:40:52.7 Michael: You guys ever get sort of maximally solipsistic and be like, "Actually, this is all just a grand experiment to see what it would take to get me to kill someone."


0:41:06.3 Rhiannon: We must be in a simulation because... This is... It's just a... It's a test.

0:41:11.4 Peter: When that one dropped, I couldn't even process it, I was just sort of like, "I'm going to move on. I'm... "

0:41:16.2 Rhiannon: Right. Like I can't... I can't process this right now.

0:41:18.8 Michael: Yeah. And a final point, I think the biggest, most important point of all for this episode is that a lot of you thought you were so clever on Twitter and were like, "Are you going to rename to 6-3?"


0:41:33.0 Rhiannon: Yes.

0:41:34.5 Michael: And I told you all at the fucking time, and I'm going to say it again, there are still going to be 5-4 decisions, and they're going to be worse than ever.

0:41:43.3 Rhiannon: Exactly.

0:41:43.5 Michael: 'Cause that's what's going to happen, is the conservative bar is going to just keep testing the limits, and they can afford to lose a Roberts or a Gorsuch or a Kavanaugh here and there, and still win.

0:41:53.3 Peter: Also, it's a metaphor about the ideological split of the Court, okay? It's not a literal description of every case.

0:42:00.3 Rhiannon: Yes. Yes. It is timeless. So fuck off.

0:42:02.6 Michael: Yeah, that's right. [laughter]

0:42:05.4 Michael: We love you, listeners.

0:42:06.7 Peter: Yes, thank you so much for listening. Buy our merch.


0:42:11.3 Peter: Buy our shit, baby.

0:42:12.4 Rhiannon: It's, all spelled out, and then click on merch, check out all the stuff we have for you.

0:42:21.5 Peter: Next week is Herrera v. Collins, a case from the '90s where the Court held that, just 'cause you're innocent, doesn't mean you don't get put to death.

0:42:32.9 Michael: Right.

0:42:33.5 Rhiannon: That's basically it.

0:42:34.5 Michael: You might think...

0:42:35.2 Peter: That's a quick summary. We'll give you the deets next week. Follow us on Twitter @fivefourpod, throw us an email telling us you respect and appreciate us. We'll see you next week.

0:42:48.0 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.