Bench Memos

Law & the Courts

Mistaking a Defense for a Crusade

I know I should be jaded by now by the persistence of Linda Greenhouse in seeking to stigmatize defense of religious liberty as a religious crusade. But I was still startled today to see her do it yet again in her online column ever so subtly titled “The Supreme Court’s Religious Crusaders Take On the Pandemic Response.” That column opens:

I know I should be jaded by now by the persistence of the Supreme Court’s conservative justices in seeking to elevate religious interests over those of secular society…. But I was still startled last week to see Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Clarence Thomas vote to turn a public health issue into a religious crusade.

Greenhouse unreflectively takes it as a given that the dissenters in in Calvary Chapel Dayton Valley v. Sisolak (topic of my post here) had the burden of showing that Nevada “singled churches out for onerous treatment without reason.” (Emphasis added.) But that’s a highly dubious interpretation of the standard, set forth in Employment Division v. Smith (1990), that laws that are “neutral” and “generally applicable” do not violate the Free Exercise Clause.

Greenhouse observes that “[p]eople who are sitting—and breathing—together for a prolonged period in an enclosed space might as well put out a welcome mat for the coronavirus,” and she recognizes that that observation applies to people in casinos. But by her account “it’s casinos that Nevada singles out for special treatment, not religion.” That is, she maintains that Nevada singles out casinos for special favorable treatment, rather than singling out religion for special unfavorable treatment.

As the dissenters point out, other facilities favored under the Nevada governor’s order include restaurants, bars, bowling alleys (even for tournaments with hundreds of spectators), breweries, fitness facilities, and arcades. It’s true that there are some other secular facilities that are subject to the same 50-person cap as churches. But it’s very difficult to maintain that a law—in this instance, a governor’s order—is “neutral” and “generally applicable” when it treats religious gatherings less favorably than many comparable secular gatherings. Greenhouse doesn’t even acknowledge the issue, much less make the necessary argument.

Greenhouse also ignores Justice Alito’s account of the greater risks that casinos present:

For Las Vegas casinos, 50% capacity often means thousands of patrons, and the activities that occur in casinos frequently involve far less physical distancing and other safety measures than the worship services that Calvary Chapel proposes to conduct. Patrons at a craps or blackjack table do not customarily stay six feet apart. Casinos are permitted to serve alcohol, which is well known to induce risk taking, and drinking generally requires at least the temporary removal of masks. Casinos attract patrons from all over the country….

Houses of worship can—and have—adopted rules that provide far more protection. Family groups can be given places in the pews that are more than six feet away from others. Worshippers can be required to wear masks throughout the service or for all but a very brief time. Worshippers do not customarily travel from distant spots to attend a particular church; nor do they generally hop from church to church to sample different services on any given Sunday. Few worship services last two hours. (Calvary Chapel now limits its services to 45 minutes.) And worshippers do not generally mill around the church while a service is in progress.

Greenhouse professes herself “astonish[ed]” by the “ferocity” of Alito’s dissent, which she says “appear[s] oblivious to the facts on the ground, particularly the well-documented role of religious services in spreading the virus.” But the strongest statements in Alito’s dissent are of the nature of “We have a duty to defend the Constitution, and even a public health emergency does not absolve us of that responsibility.” Greenhouse’s own rhetoric is far more fierce. As the excerpt above shows, it’s Greenhouse who seems determined to be “oblivious to the facts on the ground” that Alito spells out. And while I agree that indoor religious services, like comparable indoor activities, present a risk that warrants special measures, the article that Greenhouse links to refers only to “[m]ore than 650 coronavirus cases.” Given that there are more than 4.5 million total cases in the country, that number hardly justifies Greenhouse’s insinuation that religious services have played some special “role … in spreading the virus.” (It’s probably far easier to trace cases that arise from religious services than those that arise from, say, restaurants or outdoor protests.)

Pandering to the biases of her prime audience, Greenhouse also snarks about the Alliance Defending Freedom, the religious-liberty organization that represented Calvary Chapel. ADF, she ridiculously claims, “used to focus primarily on representing people seeking a religious exemption from having to do business with couples in same-sex marriages.” ADF has long defended a broad array of religious-liberty rights.

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