COVID-19 order shows Barrett fortifies Supreme Court on religious rights

By Jordan S. Rubin, Bloomberg News on

Published in Religious News

WASHINGTON — The Supreme Court's sharply divided ruling blocking New York's COVID-19 restrictions on in-person worship has bolstered the prospects of already-successful religious legal advocates while making their adversaries fear for their future at the high court.

In its most significant public action since Justice Amy Coney Barrett replaced the late Ruth Bader Ginsburg, the court late Wednesday night signaled it would side with religion claims not only in the COVID-19-context but in other religious areas, too.

"In the broader context, what this signals is that we have a court that continues to be very protective of religious liberty, and also we have a court that is looking really carefully at whether government is acting in an even-handed way when it comes to how it is regulating religious exercise compared to other sorts of comparable secular conduct," said Notre Dame law school professor Stephanie Barclay.

Barclay filed a brief on behalf of the Muslim Public Affairs Council and others in support of Orthodox Jewish religious groups that challenged New York's restrictions.

"The case is not only important for all of the COVID litigation that's been going on for many months in this country, but it shows an important principle, and that is, regardless of what type of regulations are at issue, we have to make sure that we don't treat religious people and religious organizations as second-class citizens," said David Cortman of the Alliance Defending Freedom, which litigates religious liberty claims.

Cortman said the opinion gives him added confidence that he will prevail in a case pending at the high court challenging church restrictions in Nevada. That Nevada case was previously at the court before the Barrett-for-Ginsburg switch, when the justices aligned 5-4 in favor of those restrictions, with Chief Justice John Roberts in the majority along with the then-four Democratic appointees.


Justice Samuel Alito, one of the four dissenters, criticized the Nevada restrictions in a recent speech to the Federalist Society. Now the case is pending before the court again, where the newly constituted court is likely to side with the church.

But while Wednesday's 5-4 opinion in the New York case boosted the confidence of religious liberty advocates, it sparked dread in their legal opponents, as the justices inevitably confront an array of clashes in the months and years ahead between religious rights and others, like LGTBQ rights. The court earlier this month heard argument in Fulton v. Philadelphia, in which Catholic Social Services says it shouldn't have to work with same-sex couples seeking to foster children.

Alex Luchenitser, associate legal director at Americans United for Separation of Church and State, said the New York ruling seems to increase the likelihood that the court will rule for the religion side in Fulton.

More broadly, Luchenitser said the New York case "is a very bad sign for the future of separation between religion and government and for the future of true religious freedom." He said it "so far confirms our concern that Justice Barrett would be part of a five-justice ultraconservative majority with Justices Alito, Thomas, Kavanaugh, and Gorsuch."


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