I Agree With “The Wise Latina” Justice: This Court Has Inexplicably Avoided “Strict Scrutiny” Review, In The Muslim Ban 3.0 Cases, But Applied It In NY Pandemic Order Case

I think we should prepare ourselves for reading many “multiple concurrence” case outcomes. When there are six opinions, to announce what was a pretty clearly settled letter of the law case — and to go against that settled law, with the Chief Justice dissenting. . . we may safely infer that there is a wing of the court trying actively to change that same. . . settled law.

And that is not always a bad thing (think of the dismantling of Jim Crow in the ’50s and ’60s) — but it is going to be a more fractured near term, at the highest court.

Justice Sotomayor’s dissent (below quoted) does a masterful job of skewering the transparent political / ideological, rather than legal, arguments that Alito, Kavanaugh and Gorsuch make — pointing out that a “total Muslim ban” (in their view) wasn’t a strict scrutiny violation case, but including the words “house of worship” — where the activities in such places [according to all available life sciences evidence — (crowds singing together, in close proximity for over an hour)] greatly increase public health risks — in the challenged New York order. . . magically triggered strict scrutiny. [It is well-known that strict scrutiny review almost always results in a given measure being invalidated.]

In any event, I’ll predict that one day about three years (with the changing make up of the court, and the nation it serves) from now, the “Wise Latina” Justice’s dissent will be quoted approvingly, by the majority — to say public health orders, in a pandemic, neutral on their face. . . are enforceable:

. . .The Diocese attempts to get around South Bay and Calvary Chapel by disputing New York’s conclusion that attending religious services poses greater risks than, for instance, shopping at big box stores. Application in No. 20A87, p. 23 (Application). But the District Court rejected that argument as unsupported by the factual record. ___, F. Supp. 3d ___, ___–___, 2020 WL 6120167, *8–*9 (EDNY, Oct. 16, 2020). Undeterred, JUSTICE GORSUCH offers up his own examples of secular activities he thinks might pose similar risks as religious gatherings, but which are treated more leniently under New York’s rules (e.g., going to the liquor store or getting a bike repaired). Ante, at 2 (concurring opinion). But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time. . . .

The Diocese suggests that, because New York’s regulation singles out houses of worship by name, it cannot be neutral with respect to the practice of religion. Application 22. Thus, the argument goes, the regulation must, ipso facto, be subject to strict scrutiny. It is true that New York’s policy refers to religion on its face. But as I have just explained, that is because the policy singles out religious institutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them. Surely the Diocese cannot demand laxer restrictions by pointing out that it is already being treated better than comparable secular institutions.

Finally, the Diocese points to certain statements by Governor Cuomo as evidence that New York’s regulation is impermissibly targeted at religious activity—specifically, at combatting heightened rates of positive COVID–19 cases among New York’s Orthodox Jewish community. Application 24. The Diocese suggests that these comments supply “an independent basis for the application of strict scrutiny.” Reply Brief in No. 20A87, p. 9. I do not see how. The Governor’s comments simply do not warrant an application of strict scrutiny under this Court’s precedents. Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,” originally conceived of as a “‘total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’”

If [Trump’s] statements did not show “that the challenged restrictions violate the ‘minimum requirement of neutrality’ to religion,” ante, at 2 (quoting Lukumi, 508 U. S., at 533), it is hard to see how Governor Cuomo’s do. . . .

If the Tangerine Mussolini’s campaigning and governing, by explicit religious bias, doesn’t trigger strict scrutiny for these four core hard righters (Thomas, Alito, Kavanaugh and Barrett) — I agree. . . I don’t understand what the last century of development in our first amendment jurisprudence is all about. Onward, just the same, on a sunny holiday Saturday morning. . . .


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