Religious Freedom, Public Health, and the Limits of Law
Elizabeth Shakman Hurd
This article is part of our “Notorious ACB: Law, Religion, and Justice Barrett’s Ascent to the Court” series.
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The U.S. government designates certain entities as “religious” and enforces different rules on them than on “secular” entities. The two categories find differential treatment in taxes, employment law, and other domains. Americans call this religious freedom. Certain religious organizations have used this privileged legal status to opt out of various burdens imposed by collective life, including, in a recent case in New York, government restrictions on religious gatherings during the COVID-19 pandemic.
Disagreement over the terms of such regulation is at the heart of last week’s Supreme Court decision, Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, which lifted New York’s COVID-related attendance limits on worship services. Governor Cuomo had imposed 10- and 25-person capacity limits on houses of worship in areas where COVID-19 infection rates had been climbing, restrictions that had been lifted in light of declining infection rates by the time the case was heard. The diocese and the synagogues claimed that Cuomo’s order violated the First Amendment’s right to the free exercise of religion. The majority agreed. In a 5-4 ruling, the Court granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to prevent enforcement of an order restricting attendance at houses of worship. This was not a decision on the merits; the Court enjoined enforcement of the restrictions while the plaintiffs pursue appellate review, expected to take place in December. The dissents, on the other hand, would deny relief but allow the Diocese and Agudath Israel to renew their requests should Cuomo reverse his classification of New York being out of the “red” and “orange” zones.
Liberals responded with rancor, accusing newly confirmed Justice Amy Coney Barrett, suspected of having authored the majority opinion, of rushing to enact a Trump-enabled conservative agenda. But this ruling is not about liberals versus conservatives. It is not even about the religious versus the secular. It is about the level of deference given by the courts to public health officials, and the extent to which religious organizations, availing themselves of the language of religious freedom, use the law to place themselves outside or above it.
In the United States, one way to gesture toward a realm “beyond the law” is by invoking religion. We refer to the right to do so as “religious freedom.” Religious freedom calls into legal presence an ambiguous form of extra-state authority that stands, albeit tenuously, apart from the sovereign, in a realm just beyond its reach. The legal system becomes what Spencer Dew has described as a tool used against the state that, to some extent, escapes the state’s jurisdiction. The power of the legal ideal of religious freedom in the United States lies, paradoxically, precisely in this ambivalent relation to the state and what we might call the “beyond-state.”
The problem with pitting New York’s public health regulations against religious freedom, then, is not the majority’s refusal to acknowledge that we are in the midst of a public health crisis requiring the state to take exceptional measures to ensure health and safety, even at the expense of religious freedom. Public health advice has shifted rapidly in the course of the pandemic, and Americans are notoriously averse to government regulation perceived to cramp their style. The problem is also not that Trump appointed conservative justices to the Court. The problem is the legal designation of particular entities as “religious” in the first instance, and their endowment with a kind of legal superpower allowing them to invoke special rights to sovereignty and self-determination. This is not a partisan issue; Governor Cuomo’s decision to structure his order so that it singles out religious entities for differential treatment invited this case.
Religious freedom today serves as a legal trump card that “religious” Americans (among others) use to exempt themselves from state authority of all kinds — from public health regulations, to the Americans with Disabilities Act, to the Obamacare mandate requiring employer-provided health insurance to cover birth control with no co-pays. It represents a freighted and vexed construct, arguably endowed with more weight than it can bear.
We cannot rid ourselves of our religious impulses. Nor should we. It is not possible to transcend the human urge to reckon with something larger than ourselves, acknowledge our limits, and be humbled by and before unknowable forces. In these circumstances, the government — a human institution if there ever was one — has no place deciding what it means to be “religious” according to state law. If the government does, the result is clear: those who are so designated, usually some form of the majoritarian religion, will lay claim to the privileges bestowed by this designation. Those who are left out will feel compelled to respect this claim — out of fear of being accused of being anti-religious, or even anti-American — even when to do so defies logic and fairness. It is a tense and unstable settlement.
Many secular liberals and leftists know this. Many are not, in fact, anti-religious, yet feel alienated from a system that relentlessly casts them as “secularists.” Many are uncomfortable with how U.S. law and politics restricts religion to a particular set of institutions and traditions. And many Americans who consider themselves religious share this discomfort.
Rather than rising above the religious-secular divide with the equanimity one would expect from the Supreme Court, however, Justice Gorsuch’s words entrench these divisions:
So, 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, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
Gorsuch regards acupuncture as less worthy of state respect and forbearance than practices that he understands to be religious, such as attending church services. His derisive tone is not lost on either religious or secular Americans. His statement deepens and widens the chasm between secular and religious. Yet the world is not naturally divided between religionists and secularists. We created these divisions — and we can soften them. This means acknowledging the limits of what it means to be human without demonizing those who relate to these limits in other ways. It means finding new ways to define who we are, conjuring new words to write our laws, and inventing other modalities with which to self-govern.
Chief Justice Roberts’s measured dissent glimpses this possibility when he admonishes Gorsuch for his tendency toward division: “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 ‘shelter[ing] 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.”
To write religion out of our laws is not to write it out of existence. To the contrary, it is to honor space for a ceaseless play of difference within and around the religious. It is to decline to cede the vast and shifting terrain of the religious to a single set of all-too-human institutions. The composition of the Court will change, but as long as we imagine ourselves as either secular or religious, and write these divisions into the law, the Court’s decisions will continue to divide us. ♦
Elizabeth Shakman Hurd is Professor of Politics and Religious Studies at Northwestern University. She is the author of The Politics of Secularism in International Relations (2008) and Beyond Religious Freedom: The New Global Politics of Religion (2015) both published by Princeton University Press.
Hurd, Elizabeth Shakman. “Religious Freedom, Public Health, and the Limits of Law.” Canopy Forum, December 21, 2020. https://canopyforum.org/2020/12/21/religious-freedom-public-health-and-the-limits-of-law/