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Supreme Court sees new requests for religious COVID-19 carve-outs

Supreme Court sees new requests for religious COVID-19 carve-outs
© Bonnie Cash

The Supreme Court faces new requests from religious groups seeking exemptions from pandemic-related limits that they say amount to faith-based discrimination, even as the country is undergoing another surge in coronavirus cases.

The latest requests came after the justices agreed on Thanksgiving eve to bar New York authorities from enforcing attendance restrictions at churches and synagogues in the state’s efforts to slow the spread of COVID-19.

Since then, the court has seen new filings in cases involving a Christian school in Kentucky, a reverend and rabbi co-litigant team from New Jersey and a church in California that has openly defied its Democratic governor’s health order.

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On Thursday, the justices sent the California church dispute back to a federal district court to be decided in light of the court's ruling favoring the New York houses of worship.

More than a week after the 5-4 decision in the New York case was handed down, Republican leaders continue to tout the ruling, a sign of growing optimism among conservatives that pandemic restrictions will take a backseat in religious liberty cases before the court.

“The United States Constitution matters, even during a pandemic,” White House press secretary Kayleigh McEnany said Wednesday. “While Democrat politicians seek to impose draconian restrictions against their citizens, this past week the Supreme Court of the United States had their say on New York state’s capacity restrictions.”

The Nov. 25 ruling handed a win to the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues, effectively blocking enforcement of New York Gov. Andrew CuomoAndrew CuomoThe Hill's Morning Report - Presented by Emergent BioSolutions - Facebook upholds Trump ban; GOP leaders back Stefanik to replace Cheney Broadway to fully reopen in September Mets, Yankees to open vaccination sites to fans before games MORE’s (D) executive order from October that limited attendance at houses of worship.

To critics, the decision was a worrisome instance of the court substituting its own judgment for that of public health experts and yet another example of a growing trend of conservative justices elevating religious rights over competing interests.

With the addition of recently confirmed Justice Amy Coney BarrettAmy Coney BarrettCourt watchers buzz about Breyer's possible retirement Five hot-button issues Biden didn't mention in his address to Congress Conservative justices split in ruling for immigrant fighting deportation MORE — who sided with four other conservative justices in the New York case — the rightward-tilting court may be poised to provide additional exemptions from pandemic-related restrictions. Or it could dissuade state and local health officials from trying to impose restrictions on religious institutions in the first place.

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Barrett, who is seen as a staunch conservative, joined the court in late October, just over a month after the death of 87-year-old liberal stalwart Justice Ruth Bader GinsburgRuth Bader GinsburgCourt watchers buzz about Breyer's possible retirement Five hot-button issues Biden didn't mention in his address to Congress Schumer waiting for recommendation on Supreme Court expansion MORE.

“Ultimately, I expect the new majority’s ruling will cause many state and local governments to take a hands-off approach to religious institutions in their next wave of public health orders,” said Lindsay Wiley, a public health expert and law professor at American University.

“This new case is likely to be one more reason that governors and mayors this fall are backing off of regulating even high-risk institutions and commercial establishments, even as they impose ever-stricter limits on small social gatherings,” she added.

Last week’s decision in the New York dispute marked a significant departure from the “workable approach” laid out in May by Chief Justice John Roberts in response to a separate health order challenge, Wiley said. Under Roberts’s formula, she said, “states [could] impose restrictions on houses of worship so long as they weren’t any more strict than limits on secular settings that posed similar risks, such as theaters or concerts.”

But the new majority’s approach is less concerned with assessing health risks than with ensuring that limits placed on gatherings at churches, synagogues or mosques are no more restrictive than those imposed on businesses that governments have recognized as essential.

“If churches are limited to no more than 10 people, then grocery stores have to be subjected to the same limits,” Wiley said, describing the Supreme Court’s new legal test.

Roberts found himself in a four-member minority last week, along with the court’s three more liberal justices: Stephen BreyerStephen BreyerSupreme Court weighs leniency for crack cocaine sentences The Hill's Morning Report - Presented by Emergent BioSolutions - Biden sales pitch heads to Virginia and Louisiana Court watchers buzz about Breyer's possible retirement MORE, Sonia SotomayorSonia SotomayorCourt watchers buzz about Breyer's possible retirement Sotomayor blasts Kavanaugh's decision on juvenile life sentences Supreme Court rejects challenge to juvenile life sentences MORE and Elena KaganElena KaganCourt watchers buzz about Breyer's possible retirement Sotomayor blasts Kavanaugh's decision on juvenile life sentences Supreme Court rejects challenge to juvenile life sentences MORE, all of whom dissented from the court’s opinion.

Two of President TrumpDonald TrumpDemocrats, activists blast reported Trump DOJ effort to get journalists' phone records Arizona secretary of state gets security detail over death threats surrounding election audit Trump admin got phone records of WaPo reporters covering Russia probe: report MORE’s three appointees — Justices Neil GorsuchNeil GorsuchConservative justices split in ruling for immigrant fighting deportation Top GOP super PAC endorses Murkowski amid primary threat Trump-era grievances could get second life at Supreme Court MORE and Brett KavanaughBrett Michael KavanaughConservative justices split in ruling for immigrant fighting deportation Supreme Court weighs whether to limit issuance of exemptions to biofuel blending requirements The Hill's Morning Report - Presented by Facebook - GOP makes infrastructure play; Senate passes Asian hate crimes bill MORE — wrote separate concurring opinions.

“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques,” Gorsuch wrote.

Trump took to Twitter the next day to cheer the decision.

“HAPPY THANKSGIVING!” he tweeted, linking to the court’s opinion.

The potential for an even closer embrace of religious liberty by the court comes as public health officials warn that another deadly surge of infections may be fast approaching.

The U.S. has suffered more than 272,000 deaths from the coronavirus and more than 13.7 million cases nationwide. On Sunday, the nation’s top infectious disease expert, Anthony FauciAnthony FauciWatch live: White House holds briefing with COVID-19 response team CDC director: Vaccinated adolescents can remove masks outdoors at summer camps The Hill's Morning Report - Presented by Emergent BioSolutions - Facebook upholds Trump ban; GOP leaders back Stefanik to replace Cheney MORE, warned of a likely rise in post-Thanksgiving coronavirus cases.

“There almost certainly is going to be an uptick because of what has happened with the travel,” Fauci told ABC’s “This Week.”

“We understand the importance of families getting together,” he continued. “And it’s just something that we have to deal with that we likely will have an increase in cases, as we get into the colder weeks of the winter, and as we approach the Christmas season.”

Litigants in the Kentucky and New Jersey disputes face filing deadlines this week, and the court may soon act on those cases.

Against the dire public health backdrop, some viewed the court’s decision last week with disappointment.

“This case is about the right to go to church, synagogue, or mosque during a pandemic but it’s about so much more,” said Katherine Franke, a law professor at Columbia University where she heads the Law, Rights, and Religion Project. “It represents a potent example of COVID opportunism, the exploitation of the health crisis to gain advances in other political agendas.”

Updated at 10:55 a.m.