Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, November 27, 2020

Thoughts on Catholic Diocese of Brooklyn v. Cuomo

I believe that the biggest threat we face as a nation is the growing political polarization that makes it very difficult to collaborate on the many pressing problems we face. One of the dimensions to this polarization is an overly simplistic perception that the Supreme Court is divided between “good” justices and “evil” justices, with those designations contingent solely on our political leanings. New rulings are weaponized by opposing camps and deployed in ways that lend further support to the good-versus-evil characterization.
With that preamble, I’ll offer an admittedly cursory, non-technical explanation of Wednesday night’s 5-to-4 Supreme Court ruling blocking enforcement of Governor Cuomo’s restrictions on attendance at religious services in New York. The majority’s analysis was not driven by an utter disregard of public health, and the dissent’s analysis was not driven by hostility toward religious liberty. There were two primary differences between the justices who joined the majority and those who wrote in dissent:
1) Timing: At the time of the ruling, the religious bodies objecting to the regulations were no longer subject to the rules that were the focus of their suits because the surrounding communities had shifted to less restrictive classifications based on COVID test positivity rates. The majority decided that this change did not make the case moot, as they could shift back to more restrictive classifications at any time. The dissenting justices believed that the Court should hold off on second-guessing public health authorities unless and until the conflict is real and pressing. (This is the reason that caused Chief Justice Roberts to dissent.)
2) Substance: Every justice agrees that, under the Constitution, the government cannot treat religious exercise worse than comparable secular activities. In the majority’s view, the fact that nearby liquor stores, acupuncture facilities, grocery stores, and bike shops could operate at full capacity while churches and synagogues faced restrictions suggests that Governor Cuomo’s order is constitutionally problematic. In the dissent’s view, the fact that lecture halls, concert venues, churches, and synagogues are all subject to the same occupancy restrictions suggests that religious exercise is not being disfavored. The justices disagree about the appropriate points of comparison.
When it comes to the operative background principles, there is much more consensus on the Court than most Americans would guess based on its portrayal in our political culture. To be sure, there are meaningful differences in justices’ views about how the Constitution should be interpreted. These differences matter. But each justice is committed to the rule of law and is doing their best to navigate very thorny issues.
The business model of the companies driving our economy, and the vote-boosting model of our elected officials, is based on drawing and keeping our attention, and polarization is a great engine for doing this. It is not healthy or helpful to take a clickbait approach to the rule of law – it’s not all a grand battle of good versus evil. We still have plenty to debate when it comes to Supreme Court rulings, but let’s be precise and particular when we disagree.


Vischer, Rob | Permalink