John Inazu: Analysis of SCOTUS decision on COVID-19 Restrictions

Continuing the discussion from SCOTUS decision on COVID-19 restrictions in New York:

John Inazu is a First Amendment expert, and a colleague of mine at WUSTL where he holds an endowed professorship at the Law School

Last night, SCOTUS issued injunctive relief to houses of worship challenging NYC’s COVID-19 restrictions, the first time it has granted such relief during the pandemic. I have mixed views about the decision and early reactions to it.

First, unlike @kurtlash1, I don’t see this as an “enormously important religious liberty opinion”—it is fairly fact-specific injunctive relief, and the nature and scope of pandemic orders vary greatly around the country. It’s hard to generalize much here.

I’m concerned that public messaging about the Court’s decision might fuel a broader culture wars narrative from people like John MacArthur who insist “there is no pandemic” and continue to hold services for 7,000 unmasked people.

That said, I think the Court’s conclusion is correct and makes some important observations, including that these orders cause irreparable harm because they involve restrictions of First Amendment freedoms, and that virtual worship is not a constitutionally sufficient alternative.

In other words, worship is absolutely an “essential activity” and to say otherwise is constitutionally incorrect and politically unwise. The NYC order and others like it should not be classifying worship as non-essential. Of course worship is essential.

The Court is also right to note that this order is more restrictive of worship than the earlier Calvary Chapel (Nevada) and South Bay (California) orders for which the Court denied injunctive relief.

But I think Justice Gorsuch gets too cute in his concurrence comparing worship services to bike shops and liquor stores: “at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike . . .”

Picking up a bottle of wine and attending a lengthy worship service don’t seem to me like comparable activities when we consider where people are located, how they’re moving, and what they’re doing.

I also think Gorsuch’s critique of Chief Justice Roberts’s concurrence in South Bay is overblown. I thought Roberts was right in South Bay. (It’s also pretty clear that Barrett matters here.)

Gorsuch notes that we are past the pandemic’s early stages and we now know much more about the virus. But it’s not clear which way that cuts.

On the one hand, many houses of worship are taking precautions that appear to be highly effective (as noted by the evidence presented in this case), and certainly better than activities like in-person dining.

On the other hand, the dire rates of transmission and the role that indoor gatherings are playing suggest that even more restrictions may be coming. That’s another reason I think it’s best to view the Court’s decision as limited and fact-specific.

The elephant in the room is all of the latitude given restaurants and bars, whose activities seem far worse for the pandemic than limited-number, masked, indoor worship. I think @amandamull’s analysis here is both accurate and discouraging:

As @amandamull writes: “Why can’t a governor or mayor just be honest? There’s no help coming from the Trump administration, the local coffers are bare, and as a result, concessions are being made to business owners . . . even if hospitals start to fill up again.”

That’s bad news for the pandemic, but it also weakens government responses to constitutional claims by houses of worship. Keeping restaurants and bars open is not the same as keeping Home Depot open.

That said, I’m encouraged that many, many houses of worship continue to comply voluntarily (including, in many cases, when orders have exempted them). That’s a tangible sign of loving one’s neighbor, even at great cost. Happy Thanksgiving.