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Christian nationalism overtakes the Supreme Court
With Barrett, the theocratic majority showed itself, ruling against Covid restrictions for churches. Gorsuch and Alito are unleashed.
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In a 5-4 unsigned decision issued just before midnight on Thanksgiving eve that at least one legal expert believes was written by Amy Coney Barrett, the Supreme Court threw out COVID-19 restrictions placed on houses by worship by Governor Andrew Cuomo of New York. The Supreme Court of the United States is now fine with people transmitting a virus in the name of God in the middle of a pandemic — something Pope Francis this week even disagreed with, saying there had to be restrictions and this was not about “personal freedom,” which too often becomes an “ideology.”
And the pivotal justice that flipped the court on COVID restrictions and churches is a woman who didn’t seem to care that her own announcement party at the White House had become a superspreader event. Barrett now seems happy to make all churches superspreader sites if church leaders, who may need more money in the collection plate, cry that their “freedom” is under attack. She casts herself as a pious Catholic whose personal beliefs don’t dictate her legal views, but this decision is all about Christian supremacy.
That was clear from the reasoning in the decision, which was dubious, and distorted. It claimed, for example, that there was no evidence that the applicants had caused the transmission of coronavirus, when there have in fact been dozens of cases of churches and other houses of worship contributing to mass infections and deaths. Even if the particular establishments in question didn’t record infections and spread, that doesn’t mean it won’t happen. The evidence strongly suggests otherwise.
The decision was also a sign of the kinds of religious exemptions we’ll see coming soon, though not without bitter dispute on the court. It sparked a clash, with no less than six combative opinions from the justices, including one in which Chief Justice John Roberts defended the integrity of the court’s three remaining liberal justices, with whom he sided, against a non-sensical, blistering tirade from religious liberty fanatic Neal Gorsuch.
A very different, more frightening Supreme Court indeed.
At issue are Cuomo’s restrictions, challenged by the Brooklyn Roman Catholic Archdiocese and two Brooklyn synagogues, which limit attendance to 10 people in areas the state calls “red zones” for coronavirus and 25 people for “orange zones.” Just to give you an idea, while some neighborhoods here in New York City —and in the borough of Brooklyn specifically — had briefly been in the “red zone” recently, no place in Brooklyn is currently red or even orange. Actually, other than a few yellow zones — which is the lowest among the color-coded restrictions — most neighborhoods in Brooklyn have no color code at all.
One of Roberts’ arguments was in fact that the case wasn’t relevant any longer, and thus there was no need for the court to step in, and that it’s better to leave it to public health officials until such time that there is an actual issue of possible overreach.
But the court’s newly emboldened theocrats were determined to set the record straight that this is a new court. The decision was in opposition to two previous decisions, one regarding churches in California and one regarding churches in Nevada, before Ruth Bader Ginsburg’s death, in which Roberts joined the liberals in 5-4 decisions favoring public health restrictions.
Let’s be clear: In none of the cases were churches or other houses of worship being treated differently from other similar public spaces. In the Nevada decision, both Justice Samuel Alito and Gorsuch wrote dissenting opinions:
“A public health emergency does not give governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists,” Alito thundered. Gorsuch went with: “[T]here is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
But as I wrote at the time, Nevada treated churches, synagogues and mosques just as it treated other venues in which larger numbers of people congregate and where social distancing is impractical: Movie theaters, concert halls, sporting arenas, live entertainment halls and other venues. The casinos were treated as other businesses in which strict adherence — in-use slot machines separated far apart, for example — is more easily enforceable.
Gorsuch pulled out the same bullshit argument this time in the New York case. Not content with letting the unsigned opinion — which was described by The New York Times as, “mild and measured, which is also characteristic of Justice Barrett’s judicial work” — stand on it’s own, he wrote an aggressive concurring opinion:
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…
…We may not shelter in place when the Constitution is under attack. Things never go well when we do.
Again, this was just pure distortion, and shows Gorsuch to be such a zealot on the issue of “religious liberty” that he would stoop to deception. Bike shops and liquor stores, surely he knows, do not have scores of people standing there for an hour or more indoors, chanting, singing and expelling their breath. In New York, just as elsewhere, the churches were being treated equal to other large venues, such a sporting arenas and concert halls.
And no one said you couldn’t practice your faith — nor that you can’t visit your church, mosque or synagogue — but just that you can’t do it with a certain number of people indoors. We are in the middle of a pandemic. And it will end. When it does, everyone can go back to packing churches as they have for centuries. The Constitution is fine, and allows for public health restrictions even as it protects religious freedom.
But the goal here isn’t to protect religious freedom; it is rather to elevate Christian religious beliefs. I’ve described, in discussing Barrett’s positions on marriage equality and other issues — gelling with the other conservatives on the court — how we will see religious exemptions for Christians used to discriminate. That was clear three weeks ago in oral arguments before the court in Fulton v. City of Philadelphia, in which a Catholic adoption agency in Philadelphia wants the right to take taxpayer money while discriminating against gay couples.
This is all in line with the speech Alito gave to the Federalist Society soon after Barrett’s confirmation, in which he laid out the agenda of the newly theocratic majority — claiming that the Obergefell marriage equality decision stigmatized those who don’t agree with it, following up on his having written it needs to be “fixed.”
Roberts and Justice Sotomayor are both observant Catholics who’ve spoken about their deep faith. So this is not an issue of protecting Catholicism or Christianity nor — as some in the GOP suggested during Barrett’s confirmation hearings — is criticism of the court’s actions an attack on the justices’ religious faith.
Per the The New York Times, Roberts and Sotomayor both defended the restrictions — and Roberts defended the liberal justices against Gorsuch’s smear:
“To be clear,” the chief justice wrote, quoting from Justice Gorsuch’s concurring opinion, “I do not regard my dissenting colleagues as ‘cutting the Constitution loose during a pandemic,’ yielding to ‘a particular judicial impulse to stay out of the way in times of crisis,’ or ‘sheltering in place when the Constitution is under attack.’ They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
In a separate dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was being reckless. “Justices of this court play a deadly game,” she wrote, “in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
Roberts is of course no great defender against encroachment of Christian beliefs. He the wrote the blistering dissent in Obergefell and joined the majority opinion in the infamous Hobby Lobby decision, to name a few cases in which he sided with those who want to use religion to give exemptions. But he clearly has his limits.
What Barrett, Alito, Gorsuch and Thomas — who will rope in one or two others among the conservatives from time to time — are doing is a promotion of Christian nationalism, which we’ve seen elevated by Donald Trump, bowing to his religious right base. It’s a belief that the country was founded on Christian principles and that those principles should be elevated in every aspect of daily life under the law. That’s the danger we now have with the Supreme Court’s theocratic majority.