We did not have to wait for the new conservative majority on the Supreme Court to draw blood. With their extravagant midnight ruling on the eve of Thanksgiving, the justices decided to be public health officials and struck down limits on attendance at religious services in New York.
As a matter of law, the ruling is nonsense. As a public health intervention, it is a potential disaster. But as a matter of politics, it is right on point and right on time. The best reason for this flexing of judicial muscle lies not in New York but in Georgia. This is the conservative majority doing its part to sway those remaining Senate races. The target of this decision is not the religious in New York but the evangelicals in Georgia. The Supreme Court is basically saying, “This is what is at stake for the country. If Democrats take the Senate, religion will not have a privileged place.”
Two religious groups sought preliminary injunctions when they fell within the red zones in New York. Red zones limit large gatherings of individuals for extended periods with closed venues such as theaters, sports arenas, concert halls, and places of worship. Other spaces, including many retail businesses, do not face the same restrictions. The Supreme Court chose to compare the regulation of places of worship to the regulation of those businesses, not to the regulation of secular auditoriums and arenas.
A store that people walk through would seem to pose a far smaller risk of transmission than an indoor gathering of a large number of people. In any case, that is a judgment for public health officials and not judges. Justice Neil Gorsuch, in a concurrence, tries to sound clever by comparing the solemnity of religious practices to bicycle repairs and liquor purchases, which are allowed in the red zones. He focuses on the label of essential services instead of the risks. Labels do not kill people. The coronavirus does. Churches have been hot spots, while bicycle shops have not.
The decision is nonsense for the simple reason that it was unnecessary. No one should think that this decision rests on deliberation after a full presentation of the facts. There has been no trial and no presentation of evidence or expert opinions. Even worse is that the challenged rules no longer apply. The state has given the petitioners the relief for which they asked. Courts do not ordinarily interfere unless they absolutely have to. They do not issue injunctions because something may occur. To do so during a public health emergency is the height of irresponsibility.
The justices are writing sound bites for a political campaign instead of noting the only relevant issue. What kind of transmission occurs under what circumstances? Religious groups are free to challenge the rules in New York. They could try to make a case that public health officials are wrong, and there are no grounds for the regulation. But until they make that showing, the Supreme Court lacks any reason to intervene.
The justices in the majority were so eager to show off their conservative faith that they ignored the balance of interests in the remedy. Even if they believed that New York was treating places of worship harshly, the state should have been given the chance to decide whether to further restrict secular activities rather than relax rules with churches and synagogues. Both responses are possible when the Supreme Court identifies unequal treatment as a state can level up or down. Since the petitioners were not suffering any injury, the state should have had a choice.
Despite the Supreme Court putting itself where it does not belong, New York should not be deterred. If public health officials affirm the need for the restrictions on religious services in red zones, the state should level up and impose the same rules that apply to churches and synagogues on those other activities of concern to the Supreme Court. Doing this would place the blame where it belongs on the bench. If the justices want a play at being public health officials, let the people see that it is they who have closed the bicycle shops and liquor stores. A politically active Supreme Court should be held politically accountable.
Paul Kahn is the Robert Winner professor of humanities at Yale Law School.