Our Founding Fathers promoted the notion of a solid “wall” between Church and State. Over the years, this wall has been chipped away via a series of U.S. Supreme Court decisions. Earlier this year, that wall was effectively bulldozed in a 5-4 decision mandating States provide funding to religious schools.
To be clear, in Espinoza v. Montana, with Chief Justice John Roberts writing for the majority, SCOTUS decided that when States offer funding opportunities for private schools they cannot discriminate on the basis of whether these schools are religious or not. In theory, States could be in compliance with this ruling if they simply banned tax payer funding for ALL types of private schools (what a novel idea). However, as Mark Joseph Stern pointed out in his article for Slate:
But that’s what the Montana Supreme Court did here, yet Roberts condemned its decision as “discrimination against religious schools.” If a legislature tries to end a voucher program in light of Espinoza, the Supreme Court’s conservatives could easily find more proof of anti-religious “discrimination” and force it to revive the program. Having gutted protections against the establishment of religion, the majority is limited only by its own sense of what it can get away with.
With Amy Coney Barrett on the Court, such an outcome is even more likely – especially in light of Roman Catholic Diocese of Brooklyn v. Cuomo.
Here, in another 5-4 decision, this time with Roberts on dissenting side, the Court invalidated New York’s occupancy limits on religious institutions. Now, all congregations can freely “spread the gospel” while spreading COVID-19 at the same time. This is the first case where Barrett’s vote proved decisive, but, trust me, it won’t be the last.
Now, you may say: “if church goers want to put themselves at risk, that’s their choice”. Of course, we know that if someone gets infected inside a church, COVID-19 doesn’t magically leave their body once they walk outside a church. And, if these people are not willing to adhere to social distancing guidelines while in a house of worship, what are the odds that they will do so anywhere else?
Therein lies the peculiar conflict in this country between “religious liberty” and human decency. Regardless of how important your faith is to you, and regardless of whether public health regulations exist or not… why would you willingly put other people’s lives at risk? In what religious text is such behavior deemed acceptable?
Then again, how far divorced is this behavior from religious organizations forcing their beliefs onto others and disparaging those who do not believe as they do? Or fostering discriminatory practices in schools, workplaces, healthcare and other institutions “in the name of God”?
According to the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (emphasis added); or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The “free exercise” of religion by one group of individuals shouldn’t deprive other groups of their right to exercise their religion (or not exercise any religion at all). But, this is exactly what can happen when public safety rules and recommendations are either (a) not obeyed or (b) not allowed to exist. In the era of COVID-19, it’s a challenge to practice religious rituals when you’re on a ventilator… or dead. The current SOCTUS doesn’t seem to care about that.
One final fact that’s worth noting is that by the time the Court made its ruling, many of the restrictions had already been lifted.
According to New York Governor Andrew Cuomo:
The basic point is you know why does the court rule on an issue that is moot unless — and which they had just decided several months before in other cases which presented the same argument — why rule on a case that is moot and come up with a different decision than you did several months ago on the same issue? You have a different court and I think that was the statement (emphasis added) that the court was making.
With Amy Coney Barrett’s appointment, John Roberts’ influence has been significantly diminished, if not outright eradicated. As such, I fear that this court will be making more of these “statements” in future rulings.
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