The Supreme Court changes course on religious liberty and the pandemic

December 4, 2020

Late on the evening before Thanksgiving, the Supreme Court issued an unsigned, per curiam opinion in a case titled Roman Catholic Diocese of Brooklyn v. Cuomo on the tensions between religious liberty and pandemic governance. This case dealt with New York Gov. Andrew Cuomo’s “cluster initiative” orders that targeted religious communities, including the Roman Catholic Diocese of Brooklyn and a number of Jewish congregations in Brooklyn. Agudath Israel is represented by the Becket Fund for Religious Liberty in this case. The ERLC filed a brief in support of the Diocese of Brooklyn and Agudath Israel, and we are pleased the court took up the appeal in this case.

While the Supreme Court did not decide the underlying issues in the case, the opinion issued represents a shift in the judicial approach over the last nine months as the COVID-19 pandemic rages through the United States. In response to the pandemic, all Americans are subject to federal, state, and local emergency orders that give governors and local officials broad authority to take measures to slow the spread of COVID-19. It should be noted that in the vast majority of cases, these orders have been implemented in ways that respect fundamental constitutional rights. 

But there have been cases where the government overreached and infringed upon the fundamental religious liberty rights cherished by Americans. Over the last nine months, different courts have reached different conclusions, creating a patchwork of precedents that has resulted in the First Amendment meaning different things depending on where you live. The high court has had a number of opportunities to weigh in and clarify the underlying legal issues, but until last week, the justices declined to do so, even as some members of the court signaled a willingness to rule.

The high court weighs in

Gov. Cuomo’s “cluster initiative” orders limited attendance at worship services in areas of New York where large numbers of Orthodox Jews live. In “orange zones,” worship services were capped at 25, and so-called “red zones” restricted worship gatherings to 10 people. These restrictions were in place regardless of the size of the space or what other measures the house of worship may have in place such as social distancing, masking, and so on.

More to the point, when issuing the “cluster initiative” order, Gov. Cuomo made clear that his target in this case was the Orthodox Jewish community, as our brief argued:

The Governor left no doubt that targeting Orthodox Jews was his primary motivation. He described the problem he sought to address as “predominantly an ultra-orthodox cluster,” adding that he planned to “meet with members of the ultra-Orthodox community tomorrow,” to let them know that “we’ll close the [religious] institutions down” if “you do not agree to enforce the rules.” The Governor also highlighted pictures of Orthodox Jews as allegedly demonstrating “clear violations of social distancing,” wrongly claiming that the pictures were from “the recent past” (one of those photos was of a 2006 funeral). And the Cluster Initiative that the Governor issued matched his discriminatory rhetoric, as it was plainly gerrymandered to target the Orthodox Jewish community.

Both the federal district court and the Second Circuit ruled against the Diocese and Agudath Israel, and both parties appealed to the U.S. Supreme Court on their request for an emergency injunction. The court took up the case and ruled in favor of the religious communities. Enjoining Gov. Cuomo’s order, the court wrote:

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure. 

One of the key issues in this New York case—and many similar cases around the country—is the doctrine of mootness. Under this doctrine, courts can only decide cases that involve a live controversy. Throughout the pandemic, government officials have sometimes changed regulations or converted regulations into guidance on the eve of trial, thereby depriving houses of worship their day in court while protecting their own authority to reimpose the same regulations and start the litigation clock back from the start.

Here, on the actual eve of the court’s decision, Gov. Cuomo switched the zones in question from “red” to “yellow,” arguing that the case was then moot. Thankfully, the Supreme Court issued a ruling, holding that the religious groups “remain under a constant threat that the area in question will be reclassified as red or orange.” This precedent is good news for houses of worship seeking to challenge unequally burdensome government orders as the pandemic wears on.

What’s next?

Last week’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo breathes new life into both of these cases and revives hope among religious liberty advocates that the court will bring uniformity to the law of religious liberty during a pandemic. Further bolstering these hopes, the Court this week issued a brief ruling in a California case, Harvest Rock Church v. Newsom. Using an unusual procedure, the justices ordered the district court in California to revisit Harvest Rock Church’s claims in light of the Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo.

Two similar cases are coming before the justices for consideration, one in Kentucky and one in Nevada. This week, the court will hear a challenge to Kentucky Gov. Beshear’s order closing all private K-12 schools in the state. In that case, a group of schools represented by First Liberty Institute have challenged Gov. Beshear’s orders. The schools won in federal district court and have appealed a loss before the Sixth Circuit to the Supreme Court. While it is true that public K-12 schools were also ordered closed, the schools point to other businesses and spaces similar to classrooms that remain open or have been granted exemptions from the new order.

Later this month, the court will hear a challenge to Nevada Gov. Sisolak’s emergency orders, which placed a hard cap on the size of worship services—regardless of the size of the house of worship or what other measures the church takes—even as casinos are allowed to operate at 50% capacity. In this case, Calvary Chapel v. Sisolak, the church is represented by Alliance Defending Freedom

The ERLC will continue to file amicus briefs and be involved in these cases to defend the fundamental rights of religious liberty throughout the COVID-19 pandemic.

Travis Wussow

Travis Wussow serves as the Vice President for Public Policy and General Counsel. Travis led the ERLC’s first international office located in the Middle East prior to joining the Washington DC office. He received a B.B.A. in Finance from The University of Texas at Austin and a J.D. from The … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24