For Four SCOTUS Conservatives, Insufficient Discrimination In Favor Of Religion Is Discrimination Against Religion
by Michael C. Dorf
South Bay United Pentecostal Church v. Newsom should have been a unanimous Supreme Court decision. Under the 1993 precedent of Church of Lukumi Babalu Aye v. Hialeah, a law or policy that on its face or in its intention discriminates against religion or a particular religion violates the constitutional guarantee of free exercise, though under the earlier (1990) precedent of Employment Division v. Smith, a law or policy that applies evenhandedly to religious and secular activities, individuals, and organizations does not implicate free exercise.
As Chief Justice Roberts explained in an opinion concurring in the Court's order in South Bay United last Friday, the Court had before it a challenge to an evenhanded policy. When the case came before the Court, California was allowing houses of worship to hold in-person services, but in light of the risk of COVID-19 spread, had limited attendance to 25% of seating capacity and a maximum of 100 people per service. "Similar or more severe restrictions apply to comparable secular gatherings," Roberts explained, "including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time."
The Chief was right, although he understated the point. As of when the South Bay United case came before the Court, California's rules clearly favored religious gatherings. They expressly forbade (and as of this writing still forbid) secular "professional, social and community mass gatherings," but made "an exception to the prohibition against mass gatherings for faith-based services and cultural ceremonies as well as protests," which were permissible, subject to the 25%/max-100 limit. Put simply, California has been discriminating in favor of religion, not against religion, and thus the challenge rightly failed under Lukumi/Smith.
So why wasn't the decision unanimous? Why did Justices Thomas, Alito, Gorsuch, and Kavanaugh dissent? After exploring a doctrinal possibility, I'll offer the hypothesis that they are so steeped in the FoxNews War-on-Christmas culture that they perceive modest favoritism for (Christian) religion as discrimination against it.
Although Justice Scalia authored the Smith opinion, in the intervening years the ideological valence of religious exceptions has flipped, as I observed in 2014. Smith involved a practitioner of a Native American faith seeking exemption from a peyote prohibition. For the most part, liberals were sympathetic and conservatives unsympathetic. Increasingly, however, the courts face cases in which conservative Christians seek exceptions to laws covering anti-LGBT discrimination as well as laws implicating contraception and (under certain views) abortion. Thus, many conservatives have come to dislike Smith, while many liberals now embrace it.
That ideological about-face has manifested itself in at least three ways. First, we hear calls from the right to overrule Smith. Second, conservatives have aggressively construed the Religious Freedom Restoration Act (RFRA) in cases like Burwell v. Hobby Lobby and the pending Little Sisters of the Poor case to give religious Christians broad exemptions from general laws. Third, notwithstanding Smith, as the recent oral argument in the Our Lady of Guadalupe School case shows, conservative Justices are open to providing religious exceptions through an expansive interpretation of the so-called "ministerial exception." Although the leading cases involve exceptions to anti-discrimination law, as Professor Colb recently argued, the logic of the ministerial exception extends more broadly, encompassing exceptions to the criminal law as well. Thus, as I argued back in 2012, there is considerable tension between a constitutionally required ministerial exception and the Smith rule
Accordingly, we might understand the dissenters in South Bay United as simply seeking to overrule or further erode the rule of Smith.
It is indeed possible that the South Bay United dissenters want to overrule Smith. And perhaps that sentiment explains Justice Alito's vote in South Bay United. The case presented itself as a request for emergency relief. The Court's order included no explanation. Chief Justice Roberts wrote a concurrence, but four other Justices who denied relief--Ginsburg, Breyer, Sotomayor, and Kagan--did not write or join any opinion. Justice Alito voted to grant the emergency petition but did not explain why. Although it would be extraordinary to base a vote to grant such a petition on the expectation of overruling governing precedent without so much as announcing that fact, it is conceivable.
But even indulging that view of Alito's vote, it doesn't explain the votes of the other conservatives. Justices Thomas and Gorsuch joined Justice Kavanaugh's written dissent, which gave no hint of support for narrowing or overruling Smith. He did not say that religious institutions are entitled to broad exceptions and that California's exception for religious worship services is too narrow. No, Kavanaugh said that California was discriminating against religion.
Why? Kavanaugh wrote that "comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries."
Yet Kavanaugh's claim that these businesses are "comparable" was plainly wrong. As Roberts explained in language worth quoting again:
Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
Kavanaugh did not even acknowledge, much less respond to, the point made by California in its submissions and Roberts in his concurrence, that lectures, concerts, movies, spectator sports, and theatrical performances are all much more comparable in terms of coronavirus risk than are the places and activities Kavanaugh invokes. And California treats houses of worship more favorably (assuming that one thinks that it's a good thing to be able to contract a potentially deadly disease, as the plaintiffs and the dissenters apparently do), not less favorably than comparable secular activities and venues.
What gives? One possibility is that Kavanaugh and the other dissenters (except perhaps Alito) conflated questions of risk with the question whether a service is essential.
For most of the period during which states and localities have limited gatherings and movement, exceptions were made for so-called essential services, such as health care, home delivery, and grocery shopping. As states have "re-opened," however, where sound policy prevails they have given priority to the sorts of businesses that customers can patronize at relatively low risk. No one would say that dog grooming is an essential service, but dropping one's dog off at the groomer while the customer and the groomer both wear masks involves minimal risk due to the brevity of the interaction. Meanwhile, assuming good ventilation and sufficient spacing, groomers working on a one-groomer-per-dog basis do not expose themselves to much risk either.
The same is more or less true for cannabis dispensaries. Both customers and delivery personnel using contactless delivery and curbside pickup can minimize the risk of exposure. True, San Francisco made a dubious decision by deeming dispensaries essential from the beginning, when--with the arguable exception of people using the drug medicinally--marijuana is not essential. But one can make sense of even that classification by noting that pharmacies and grocery stores themselves sell many items that are hardly essential in the sense of being necessary to sustain life, and it is more or less a legal accident that people sell cannabis (including for medicinal purposes) in dispensaries rather than in pharmacies or grocery stores.
In any event, the Kavanaugh dissent proceeded on the apparent assumption that California has based its most recent rules on judgments about what is and what is not essential. He reasoned more or less as follows: California treats getting high or having a dog professionally groomed as more important than going to church. That's discrimination against religion.
Indeed, I think that's the most straightforward reading of the Kavanaugh dissent. I would stop here were it not for the fact that this most straightforward reading renders the Kavanaugh dissent almost incomprehensibly incompetent. It would be one thing if no one had pointed out that the relevant comparators to in-person worship services are secular settings in which people congregate in large groups for extended periods of time, such as lectures, concerts, and movies--but both California's brief and the Roberts concurrence made exactly that point. So Kavanaugh and the other dissenters can have thought the relevant comparison was to dog groomers and weed shops only by failing to understand the extremely basic point that California was distinguishing based on relative risk, not based on the relative importance of religion versus well-groomed dogs and getting high.
I do not wish to accuse three (or possibly four) Justices of the Supreme Court of incompetence, at least not when there's another plausible explanation. And here I think there is: ideology.
In a very insightful 2017 article, Prof Caroline Corbin identified in Justice Scalia's jurisprudence what she called, by analogy to the concept of white privilege, "Christian privilege." As she wrote in the abstract, white privilege boils down to three essentials: "(1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility." She then mapped these elements "onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally."
The denouement of Corbin's article was the quotation of an exchange from the 2009 oral argument in Salazar v. Buono, which concluded with Justice Scalia describing as "outrageous" the contention that in a military cemetery a Latin cross--the symbol of the crucifixion of Jesus--honors only Christian war dead. As Corbin wrote, the "exchange highlights how Christianity is the unstated norm in the United States and that this Christian privilege is often invisible precisely because the Christian perspective is assumed to be the universal perspective."
The perspective of Christian privilege is ubiquitous on the right. FoxNews talking heads both reflect and stoke it every December, when they complain about the "war on Christmas." As Corbin observed on that topic:
After years of ignoring all the non-Christians who do not celebrate Christmas, it became standard to wish people “Happy Holidays” instead of “Merry Christmas” during the “holiday season.” In a sign of Christian fragility, this move towards inclusiveness was soon depicted as an attack on Christians and Christmas.
"Fragility" is a perfect description of the attitude underlying the Kavanaugh dissent in South Bay United.
The Court seems poised to give churches, religious schools, and other sectarian institutions (which are overwhelmingly albeit not exclusively Christian) a gigantic constitutional exemption from anti-discrimination law in the Our Lady of Guadalupe case. California has already exempted houses of worship from some public health regulations that apply to comparable secular institutions. But that favoritism does not satisfy the Court's conservatives. With the exception of CJ Roberts, they perceive religion in general and Christianity in particular as the object of government hostility because the special benefits for religion do not go as far as they would like, or as far as they believe those benefits went at some time in the mythologized past, or as far as they would like to see in a theocratic future they are trying to usher in.