More Church-Covid Cases at the Supreme Court

A new battle in America's culture wars


Late last month, by a vote of 5-4, the Supreme Court blocked enforcement of New York's restrictions on religious gatherings during the Covid epidemic. (Roman Catholic Diocese of Brooklyn v. Cuomo). The Court ruled in the context of a preliminary injunction, which means that the case returns to the lower courts for a final decision. Meanwhile, cert is pending in two similar cases, one from California and one from Nevada, both of which are back at the Court after earlier consideration this past summer.

Covid restrictions vary from state to state and are continuously being updated to account for the course of the epidemic. As a result, the decisions in these cases are typically quite narrow. Yet the cases have generated a tremendous amount of heat. The epidemic, which at this writing has killed almost 300,000 Americans, has exacerbated America's cultural and political polarization. The epidemic has become another battle in our wars over "science" and "religion," "equality" and "freedom." Justice Kavanaugh put it well in a case from Nevada this past summer:

"The definitional battles over what constitutes favoritism, discrimination, equality, or neutrality can influence, if not decide, the outcomes of religion cases. But the parties to religion cases and the judges deciding those cases often do not share a common vocabulary or common background principles. And that disconnect can muddy the analysis, build resentment, and lead to litigants and judges talking past one another."

In our latest Legal Spirits podcast, my colleague Marc DeGirolami and I discuss the Court's most decision in the Brooklyn litigation and its implications for similar cases and for our culture wars generally. You can listen to the episode here.

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  1. Wow, who could have seen that coming…

    (For the record, lest I be accused of gratuitous America-bashing again, this fight is only just beginning in my native Netherlands. Even though the constitution expressly allows interference with the freedom of religion only “other than in buildings and enclosed places”, most churches have been good about voluntarily complying with the lockdown. There have only been a few instances of massive church services still going ahead.

    But this vaccination programme will be a problem. There is a substantial group of orthodox protestants in the Netherlands who traditionally have a religious objection to vaccinations of any kind. That is bad enough when it leads to the occasional measles outbreak, but now with Covid that will be a problem, particularly since they live in particular parts of the country, all together. I have no idea how the government will handle that.)

    1. You could make some arrangement for them to be exposed to the various coronavirus “common colds”; I suppose if they caught it by having a volunteer sneeze in their face, it wouldn’t be considered a “vaccination”, but research shows it would still confer a great deal of resistance, if not outright immunity, to Covid 19.

  2. “The epidemic, which at this writing has killed almost 300,000 Americans,”

    There have been about 300,000 excess deaths YTD, but only about 200,000 are attributed by the CDC to Covid.

    I suppose you could say that somebody who dies because their only sort of elective medical procedure gets put off was “killed by the pandemic”. I prefer to distinguish people actually killed by the pandemic from people who were killed by the response to it.

    1. Citation for the 200,000 figure?

        1. As of now, the CDC reports just short of 300,000 deaths due to COVID.

          As to the current number of excess deaths from all causes, that depends on whether you report deaths in excess of the average or the 95% confidence interval of the expected value. The 300,000 figure from above is relative the to the average, whereas typically the figure that is reported is relative to the 95% confidence interval. The latter figure is very close to the deaths from COVID.

          Bottom line: we have about 300,000 deaths from COVID and at least 300,000 excess deaths, and perhaps much more.

          1. Not according to John Hopkins

            1. Johns Hopkins has 300,000 COVID deaths and doesn’t report excess deaths.

          2. I’ve seen reports that deaths from heart disease are up this year, in patients absolutely not suffering from Covid, due to lack of elective medical care. Similar deaths are expected, with a bit more delay, for cancer patients.

            And there’s a serious question about the difference between “deaths from Covid” and “deaths with Covid”.

            But excess deaths were greater than Covid deaths in October, and I see no reason to think they’re not greater today. Some people have died from Covid, some with Covid, and some have died of the response to Covid.

            1. “and some have died of the response to Covid.”

              Not to mention riots and general increases in violent crime.

              1. Tbf, I don’t think we can reasonably blame Covid for a bunch of brownshirts taking over Washington DC.

            2. Assuredly some COVID deaths should not be Until such time we have an accounting for excess deaths not to attributed to COVID. Just as assuredly, some deaths not attributed to COVID should be. And yes, some of the excess deaths are caused by people delaying treatment in light of COVID.

              All that being said, Occam’s razor strongly suggests, in the absence of quantitative data to the contrary, the overwhelming majority of excess deaths are deaths caused by COVID. Given that excess deaths are anywhere between just a bit and quite a bit higher than COVID deaths, the 300,000 deaths from COVID seems reasonable.

    2. Remember that George Floyd “died” of COVID — that’s how they are calculating this.

  3. Ensuring freedom of religion is critical in this country. And yes, there may be a cost. But look at the alternative.

    The Falun Gong are a religious sect that is heavily persecuted in China. Thousands have been killed at the hands of the state, with hundreds of thousand imprisoned for the crime of following a religion that is deemed “not acceptable” by the state. The members are currently selectively executed for their organs, which are then transplanted to rich, well connected Chinese.

    You may say “That would never happen in the US”. But then, who ever would’ve thought the Governor of New York would be selectively shutting down Orthodox Jewish religious facilities, while nearby department stores stay open? Whoever would’ve thought you can go an gamble in a Casino in Nevada, but can’t worship in your own church?

    The lessons of the Falun Gong persecution, and how it happened in China are critical here. How it began with a public relations campaign to demonize, diminish, and de-legitimize the religion. How it was redefined as a “cult”. How the Chinese “Supreme People’s Court” issued a new judicial interpretation on the religion. How internet censorship limited the scope of discourse and PR.

    And how you see all those things starting to happen in one form or another today in the US. And some of us realize…religious freedom needs to be defended, and defended vigorously.

    1. I second this = religious freedom needs to be defended, and defended vigorously

      1. You both are begging the question as to what constitutes religious freedom. If you listen to the podcast, both commentators believe the answer is fact based. Both think Nevada violated religious freedom rights, but Kentucky didn’t. They disagree about California and New York.

        1. Religious freedom it a fundamental Constitutional right in this country. As part of the right to free exercise, the ability for a adherants of a religion to worship in their own houses of worship is a critical aspect. Any restrictions on their ability to worship in their own houses of worship should fall under strict scrutiny.

          1. “Any restrictions on their ability to worship in their own houses of worship should fall under strict scrutiny.”

            Absolutist clingers — gun nuts and superstitious zealots in particular — are among my favorite culture war casualties.

            See you down the road, clingers.

          2. I strongly disagree that neutral and generally applicable laws which incidentally restrict the ability to worship in a house of worship should be subject to strict scrutiny.

        2. No Josh R, I must disagree. We beg no question. Free exercise is a core aspect of religious freedom. The fact is, religious free exercise was suppressed in the name of stopping/slowing the spread. That suppression was wrong (it slowed/stopped nothing), and it was unconstitutional.

          These restrictions should have been evaluated under strict scrutiny.

          1. You are begging the question when you assume a neutral and generally-applicable law which incidentally suppresses religious exercise, suppresses the “free exercise of religion.”

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