It’s fitting that Amy Coney Barrett, whose nomination to the Supreme Court was celebrated with a superspreader event at the White House, would begin her tenure by targeting measures meant to combat the pandemic. In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court ruled that restrictions on religious gatherings imposed by New York’s governor violated the free-exercise clause of the First Amendment. Barrett’s influence was unmistakable. The late November decision departed from two similar cases in recent months that involved churches in California and Nevada. Their outcomes depended on Chief Justice John Roberts joining the four members of the court’s liberal wing—which then included Ruth Bader Ginsburg—to uphold public-health rules.
Now that Barrett has replaced Ginsburg, the Supreme Court’s conservatives have been further empowered. In an unsigned majority opinion, five of them took aim at an executive order signed by New York Gov. Andrew Cuomo that puts a strict cap on attendance at religious services in certain color-coded geographical zones, classified by severity of their COVID-19 levels: in “orange zones” twenty-five people can attend; in “red zones” only ten. Because there were no such limits on either “essential” businesses in red zones or non-essential businesses in orange zones, the conservative majority concluded that houses of worship had been singled out for especially harsh treatment. Justice Neil Gorsuch was particularly irked that liquor stores and bike shops weren’t covered by the restrictions. “Who knew public health would so perfectly align with secular convenience?” he wrote in his concurrence.