Published on November 27, 2020
Amy Coney Barrett’s accession to the Supreme Court excited religious liberty advocates. They believed her originalist jurisprudence, combined with her evident devout faith, would make her a firm advocate of interpreting the Constitution’s free exercise clause to defend religious liberty. Her decisive role in the court’s opinion this week enjoining the overly strict regulations from New York Gov. Andrew M. Cuomo (D) on how many people can gather in a house of worship shows how right they were.
The covid-19 pandemic has forced almost all states to issue guidelines restricting the number of people who can gather at one time, especially indoors. This necessarily affects houses of worship, as they regularly hold indoor gatherings with hundreds or even thousands of people in close quarters. Pandemic-driven restrictions clearly interfere with the free exercise of religion, which is protected by the First Amendment. Not all of these restrictions go too far, of course, but it was inevitable that the Supreme Court would have to interpret that protection and ascertain how stringently a government can restrict religious freedom while it seeks to restrict the virus’s spread.
Earlier this year, the court issued two rulings that allowed states to place harsher restrictions on houses of worship than on other indoor gatherings. These cases, which arose in Nevada and California, were decided on 5-to-4 votes, with Chief Justice John G. Roberts Jr. siding with the court’s then-four liberals. The Nevada case was especially infuriating, as the state’s regulations explicitly allowed casinos and other tourist-attracting institutions to host hundreds of more people inside their walls than churches, mosques or temples could welcome in theirs. That ruling effectively said the state can allow residents to worship Mammon while restricting their worship of God.
Henry Olsen is a senior fellow at the Ethics and Public Policy Center.