In a bitterly contested ruling in November, the Supreme Court sided with religious groups challenging restrictions on in-person worship in New York State. In doing so, the justices in the majority signaled a dangerous retreat from the long-established legal principle of deferring to the public health powers and judgments of state governments.
At first glance, the consequences of the New York case appear limited: officials even revised the state’s restrictions before the Court issued its injunction. The five conservative justices in the majority granted relief for the challengers regardless, on the basis that Governor Cuomo’s directives “single[d] out houses of worship for especially harsh treatment” compared to essential businesses. The governor had mandated that certain areas of the state with high rates of community spread limit attendance at religious services, whereas secular settings like grocery stores were not subject to such constraints.
The evidence did not bear out the idea that houses of worship had faced discrimination, however. For example, a brief submitted by the American Medical Association noted that “the Governor’s Executive Order has singled out religious services for more lenient treatment than similarly risky activities.”
Beyond the narrow (and currently moot) specifics of the New York case, the ramifications of the conservative majority’s ruling undermine the viability of critical public health measures like restrictions on high-risk activities and mask requirements. The upshot of the unsigned November ruling could be severe — both during this pandemic and the next.
Judges, as the majority that overruled restrictions in the New York case pointed out, are not public health experts. That’s precisely why the age-old principle of salus populi suprema lex esto, meaning the welfare of the people is the supreme law, calls for the courts to give state officials substantial latitude in their efforts to limit the spread of deadly pathogens like SARS-CoV-2.
The majority in Roman Catholic Diocese of Brooklyn v. Cuomo claimed, in the face of overwhelming evidence and expert consensus to the contrary, that “it has not been shown that granting the applications will harm the public” and that “the State has not shown that public health would be imperiled if less restrictive measures were imposed.”
In a concurrence, Justice Neil Gorsuch brushed aside the weight of salus populi, referring to the landmark Supreme Court precedent of Jacobson v. Massachusetts as a “modest decision.” Though no one would seriously argue with Justice Gorsuch’s assertion that “even in a pandemic, the Constitution cannot be put away and forgotten,” this is a straw man. In fact, New York State was striving to balance states’ public health powers with other constitutional liberties. (See this recent post for more on balancing religious freedom and public health.)
As states try to strike this balance, the fact that this pandemic has led to the deaths of hundreds of thousands of people in this country should urge strongly in favor of leaving public health measures intact. The carnage that Covid-19 has wrought seems to represent an emphatic call for federal judges to defer to epidemiologically-informed executive actions.
Until we reach vaccine-induced herd immunity, policies that leverage public health tools such as mask-wearing and physical distancing continue to be the most effective tools at state and local officials’ disposal to combat the spread of the novel coronavirus. When necessary, mask mandates and temporary shutdowns of non-essential businesses are not panaceas, but they’re far from useless.
Recognizing the authority of state officials to implement life-saving measures is not tantamount to casting aside the Constitution. Instead, recognizing states’ prerogative to safeguard the health and welfare of the people is exactly what the Court’s precedents, a proper weighing of constitutional interests, and the dire reality of this pandemic require.
