Opinion | Justice Amy Coney Barrett’s Choice

Justice Amy Coney Barrett had a choice.

She could provide the fifth vote on the Supreme Court that Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh needed — and would not have received from the Justice Ruth Bader Ginsburg — to place a temporary block, in the name of religious freedom, on New York’s pandemic-driven limitations on church and synagogue attendance.

Or she could give that precious fifth vote to Chief Justice John Roberts in the name not only of public health but also of judicial modesty, since the most severe restrictions the Catholic and Jewish organizations were complaining about were no longer in effect and the whole case might well disappear into thin air if the Supreme Court simply stayed its hand.

History will record the choice Justice Barrett made in the court’s Nov. 25 decision as the first moment of fruition for the hopes and fears engendered by her abrupt election-eve ascension to the Supreme Court following Justice Ginsburg’s death in September. Until then, Chief Justice Roberts had held the line in favor of public health in similar cases from California and Nevada, each by 5 to 4 votes. Now he was left in dissent, joined by the remaining members of his former majority, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Barrett, who did not express her opinion in writing, was a silent member of the new majority.

I’d like to think this was a tough choice for her, but in the end, this case may simply disappear. The Roman Catholic Diocese of Brooklyn, along with an Orthodox Jewish organization, was appealing the decision of a Federal District Court judge not to enjoin the state from enforcing attendance limits at worship services. That’s when the Supreme Court stepped in, at the request of the diocese, and issued the injunction itself, pending the appeal to a federal appeals court in New York, which will hear the case in two weeks. Maybe then the case will end up back at the Supreme Court on the merits, but most likely, it won’t, because the governor eased the restrictions while the case was pending in the court.

The real significance of the decision lay in the which-side-are-you-on test it posed for the newest justice. I don’t mean the conservative side versus the liberal side. Obviously, she’s a conservative. What matters is that a month into her tenure, she chose to align herself with what I call grievance conservatism: conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.

The embodiment of grievance conservatism is Justice Alito, who in a speech last month to his fellow members of the Federalist Society said that “it pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”

Justice Alito is a member of a Supreme Court majority that during his nearly 15-year tenure has been more deferential to the demands of religious believers than any Supreme Court in modern history. Just this past summer, the court ruled that a state that offers a subsidy for private-school tuition must include parochial schools in the program; that religious organizations may exclude a substantial category of employees from the protections of federal civil rights laws under a “ministerial exception” that goes well beyond members of the ministry; and that employers with religious or even vague “moral” objections to contraception can opt out of the federal requirement to include birth control in their employee health plans.

Justice Alito was in the majority in these decisions and so, notably, was Chief Justice Roberts. And both were in dissent five years ago when the court declared a constitutional right to same-sex marriage in Obergefell v. Hodges. But while the chief justice seems to have made his peace with that decision (he was in the majority in the decision in June that interpreted federal civil rights protections as applying to gay and transgender individuals, while Justice Alito called the ruling a “brazen abuse” in a 54-page dissent accompanied by a 52-page appendix), the implications of Obergefell for people with religious objections to same-sex marriage still gnaw at Justice Alito.

Along with Justice Thomas, he wrote sympathetically in early October about Kim Davis, the Kentucky county clerk who refused for religious reasons to issue marriage licenses to same- sex couples. While agreeing with the other members of the court that the clerk’s appeal wasn’t suitable for Supreme Court review, the two justices wrote that “nevertheless, this petition provides a stark reminder of the consequences of Obergefell.” They continued, “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.”

Since the two justices were neither voting to grant the appeal nor dissenting from its denial, their opinion was entirely gratuitous. They simply used the case as a platform to reiterate warnings about the threat to religion from official recognition of same-sex marriage.

Justice Barrett was not yet confirmed when Justices Thomas and Alito issued this statement. I wonder whether she would have signed it. It was pure grievance conservatism, with no effect other than to invite new cases seeking to overturn Obergefell, and to strike fear in some parts of the L.G.B.T.Q. community that it could happen. It won’t. But I’m certain that the pressure on the court will only grow.

There’s no neutral ground: The Supreme Court has become a prize in a war over how far the country will go to privilege religious rights over other rights, including the right not to be discriminated against. A case the court heard last month, Fulton v. City of Philadelphia, raises the question whether a Catholic social services agency under contract with the city to place children in foster homes can refuse to consider same-sex couples as foster parents despite the city’s nondiscrimination law.

For religious adherents pressing such claims, equal treatment is no longer sufficient. Special treatment is the demand. That’s clear in another Covid-related case that reached the Supreme Court this week. In mid-November, Gov. Andrew Beshear of Kentucky issued a temporary order barring in-person instruction in all public and private schools. A religious school, Danville Christian Academy, promptly won an injunction from a federal district judge.

A three-judge panel of the United States Court of Appeals for the Sixth Circuit stayed the injunction this past weekend. The court observed that because the order applied to religious and secular schools alike, it was “neutral and of general applicability,” key words that under a 1990 Supreme Court decision, Employment Division v. Smith, to foreclose a claim under the First Amendment’s Free Exercise Clause for a special religious exemption.

Claiming that “it is called by God to provide in-person instruction to its students,” the school has gone to Justice Kavanaugh, who has supervisory jurisdiction over the Sixth Circuit, asking him to vacate the stay of the injunction. The 35-page brief skips almost entirely over the fact that public schools are under the same strictures, asking instead, “Why can a 12-year-old go to the movies along with two dozen other people, but she can’t watch ‘The Greatest Story Ever Told’ with a smaller group in Bible class?” Justice Kavanaugh has told Governor Beshear to respond by Friday afternoon.

The Sixth Circuit panel’s unanimous ruling against the school was somewhat unusual because it was issued by one Democratic-appointed judge, Karen Nelson Moore, and two judges appointed by President George W. Bush, John Rogers and Helene White. Statistics compiled recently by Zalman Rothschild, a fellow at the Stanford Constitutional Law Center, show a startling partisan divide in how federal judges have approached cases involving religious objections to government-imposed limitations related to Covid-19.

In a group of 89 such cases, Democratic-appointed judges voted to uphold all the government orders, while Republican-appointed judges did so only 36 percent of the time. The difference is even more stark with judges appointed by President Trump. They voted to uphold the orders in only 6 percent of cases, voting 94 percent of the time in support of the religious plaintiffs.

Numbers like this pose an obvious question: Are Trump-appointed judges supporting religious claims as a matter of personal faith, or has voting to uphold religious claims become a kind of judicial MAGA cap, a mark of political identity?

At this moment’s legal and political inflection point, the answer may not matter. If Justice Barrett wants company, she clearly has plenty. And the rest of us have plenty to worry about.

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