Since the destruction of the Temple, the synagogue has been the fulcrum for organized Jewish life. Thus you might think that the recent spate of litigation over pandemic-ordered lockdowns of houses of worship, and the Supreme Court’s overturning of many such moves, would be good news, especially for observant Jews who spend a lot of time in shul. But not so fast. The turn comes with costs and dangers. And it enlists synagogues in a culture war that is none of their business.
Last spring, in South Bay United Pentecostal Church v. Newsom, the Supreme Court voted 5-4 to uphold an order by California Governor Gavin Newsom closing down synagogues and churches (and numerous other venues) while allowing certain “essential services” such as groceries and drugstores to remain open under rigorous restrictions. In November, the Court heard a pair of similar cases challenging the New York governor’s restrictions on houses of worship in Brooklyn, brought by the Roman Catholic Diocese of Brooklyn and the Haredi umbrella group Agudath Israel. This time, the court went the other way, rejecting the restrictions 5-4. Of course, Justice Ruth Bader Ginsburg had been replaced by Justice Amy Coney Barrett.
The decision turns on whether lockdowns treat houses of worship and secular institutions differently—a kind of equal protection issue—and the level of justification necessary for such “differential treatment.” This is a change from previous jurisprudence, which would have asked merely if the requirement was narrowly tailored and served a compelling government interest— and would likely have deferred to the explanations offered. Already, lower courts have recognized this change in emphasis as “seismic.” The Ninth Circuit cited it to overturn a Nevada restriction on houses of worship, and courts in Colorado and New Jersey were ordered to revisit attendance limits. And we are just getting started.
Of course, religious entities should not be treated worse than secular entities. But we should be chary of Justice Neil Gorsuch’s seemingly absolutist view, expressed in a concurrence to the Brooklyn case, that there is “no world in which the Constitution tolerates…executive edicts that reopen liquor stores and bicycle shops, but shutters churches, synagogues, and mosques.” Really? Is it constitutionally irrelevant that the liquor store allows only one person in the store at a time, for five minutes? Or that the bicycle store customers must stand 12 feet from a Plexiglass shield, while the worship service at the church is two hours long, the worshipers sing lustily and their fervor makes social distancing unenforceable?
The sweeping language suggests that Gorsuch views these issues through the lens of an embattled partisan in the culture wars. Justice Samuel Alito recently expressed similar views in a Federalist Society speech complaining of a supposed widespread belief that religious liberty “is often just an excuse for bigotry, and it can’t be tolerated.”
A public health response to a pandemic must be dynamic, changing as conditions change and the science improves. Justice John Roberts pointed out in a dissent to the Brooklyn case that “It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.” This is especially true of those working with partial information amid pandemic chaos and the “fog of war.” But if the Court now disparages the views of administrators who, as Alito complained in the Federalist Society speech, wish to “implement policies based on expertise…in the purest form, scientific expertise,” it is unlikely they will give much deference to experts or their scientific judgments.
For the Jewish community this development cuts both ways. Certainly, Reform, Conservative and Orthodox Jews (and others) can appreciate the court’s newly found sensitivity to the importance of religious life in a pandemic. But the various denominations tend to split on operational issues of the lockdown—in part because of differences in the centrality of physical communal prayer in their spiritual and social lives. The ultra-Orthodox, whose religious and social lives revolve around physical propinquity, already feel themselves in a Kulturkampf (rather as Alito does) at odds with secularism and scientific expertise. Other denominations (including those who share with the ultra-Orthodox the obligation to pray three times a day) have developed a variety of halachically permissible workarounds, including open-air services, multiple small services and creative uses of Zoom. Even when synagogues were allowed to open, the Vaad HaRabonim, the Orthodox religious authority of Washington, DC, insisted that synagogues wait an additional two weeks based on the advice of their medical experts. These communities want to steer clear, as much as possible, of a war between science and religion. One hopes we are not moving in that direction.
Marshall Breger is a law professor at Catholic University.