Late last month, by a vote of 5-4, the Supreme Court blocked enforcement of New York’s restrictions on religious gatherings during the Covid epidemic. (Roman Catholic Diocese of Brooklyn v. Cuomo). The Court ruled in the context of a preliminary injunction, which means that the case returns to the lower courts for a final decision. Meanwhile, cert is pending in two similar cases, one from California and one from Nevada, both of which are back at the Court after earlier consideration this past summer.
Covid restrictions vary from state to state and are continuously being updated to account for the course of the epidemic. As a result, the decisions in these cases are typically quite narrow. Yet the cases have generated a tremendous amount of heat. The epidemic, which at this writing has killed almost 300,000 Americans, has exacerbated America’s cultural and political polarization. The epidemic has become another battle in our wars over “science” and “religion,” “equality” and “freedom.” Justice Kavanaugh put it well in a case from Nevada this past summer:
“The definitional battles over what constitutes favoritism, discrimination, equality, or neutrality can influence, if not decide, the outcomes of religion cases. But the parties to religion cases and the judges deciding those cases often do not share a common vocabulary or common background principles. And that disconnect can muddy the analysis, build resentment, and lead to litigants and judges talking past one another.”
In our latest Legal Spirits podcast, my colleague Marc DeGirolami and I discuss the Court’s most decision in the Brooklyn litigation and its implications for similar cases and for our culture wars generally. You can listen to the episode here.
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