How long Trump’s legacy outlasts President Donald Trump remains to be seen, but it appeared to be healthy and durable last week in a 5-4 Supreme Court ruling.
The case was Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, Governor of New York. The diocese sought “injunctive relief” from the governor’s executive order limiting attendance at religious services during the pandemic. Cuomo had established color-coded zones — red, orange, yellow — to indicate infection levels and imposed attendance restrictions accordingly, a maximum of 10 congregants in red zones and 25 in orange zones.
The applicants contended that the restrictions are more stringent than those applied to secular institutions that had been deemed “essential,” and that they thus violated the First Amendment’s protection of the free exercise of religion. In fact, one of the applicants contended that Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”
The court found in favor of the diocese, and its ruling applies to two Orthodox Jewish synagogues that had filed similar requests.
The ruling reflects Trump’s profound — and very durable — impact on the nation’s highest court. Had Senate Majority Leader McConnell not refused to consider any nomination to the court during President Barack Obama’s last year in office, or if he had been unable to bear the hypocrisy of squeezing Trump’s nominee, Amy Coney Barrett, through the Senate barely in time to beat the election, last week’s decision would almost certainly have gone in the opposite direction.
In fact, in similar cases in California and Nevada last summer, the court ruled 5-4 in favor of government officials and public health experts who were attempting to control the infection rate by limiting attendance at religious services. Clearly, if the court hadn’t shifted, last week’s ruling in Diocese v. Cuomo would have been different.
And just as clearly, the court got it wrong. If you don’t trust my judgment on this — and you shouldn’t — I urge you to read the court’s 33-page ruling for yourself.
The ruling is an unsigned, bland rejection of the governor’s attendance restrictions, depending on Justices Breyer and Sotomayor, writing in dissent, to note that lower courts have found “distinguishable” differences between religious services and other “essential” institutions.
Further, the ruling ignores the fact that secular entities that more closely resemble churches — movie theaters, lectures, concerts — were subjected to even harsher restrictions, including closures.
Thus, you have to read the dissents to understand this case fully. But to understand thoroughly Trump’s influence on the court, you have to read the concurrence by Neil Gorsuch, the justice who was imposed on the court by Trump and the Republicans in place of Obama’s nominee, Merrick Garland.
Gorsuch’s concurrence is jarringly Trumpian in tone and content. He expresses breathless indignation and sarcasm that aren’t ordinarily associated with deliberative judicial reasoning. Gorsuch registers particularly partisan contempt for Governor Cuomo, whose attempts to control the spread of the virus Gorsuch characterizes with loaded language such as “edicts,” “executive decrees” and “assertions of power.” He refers gratuitously to “New York’s unconstitutional regime.”
Further, Trump’s pervading sense of grievance is reflected in Gorsuch’s depiction of churches besieged by a secular society and a governor who thinks that “laundry and liquor” are “essential” but “traditional religious exercises are not.” Gorsuch says, sarcastically, “according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine.”
In fact, Trump’s sarcasm and sense of persecution may echo in the court for some time in findings such as Gorsuch’s, whose pious sanctimony seems fixated on liquor stores, which he mentions dismissively at least five times.
In short, Gorsuch sounds like Trump: strident, sarcastic, snide, partisan, aggrieved and victimized, the opposite of the deliberative, conservative rationality of Chief Justice Roberts.
And in all the debate, nobody even bothers to mention the best advice for the size of a religious service during a pandemic: Matthew 18:20: “For where two or three are gathered together in my name, there am I in the midst of them.”
John M. Crisp, an op-ed columnist for Tribune News Service, lives in Georgetown, Texas, and can be reached at email@example.com.