Historians dispassionately scrutinizing our pandemic times a lifetime or two from now will surely marvel at how the mightiest nation in the 21st century splintered into conflict and impotence in battling SARS-CoV-2 and its insidious spread. Some political scientists may even put aside the chaos and conspiracy theories spread by the president of the United States and lay as much blame or more on our constitutional system of governance, including the tremendous powers ordinarily left to state and local governments to address public health crises. With different sentiments in different regions of the country, including a clear urban/rural divide, the United States may represent one big, fairly slow-moving pandemic target because of its rigorous adherence to states' rights and mounting partisanship.
In that context, last week's 5-4 Supreme Court ruling in Roman Catholic Diocese of Brooklyn v. Cuomo will further confound historians. The case involves protests by Catholic and Jewish congregations in New York over what they argued were overly stringent pandemic restrictions imposed by Gov. Andrew Cuomo. These restrictions tightly limited gatherings in certain places of worship. The congregations were left smarting, given what they saw as far looser restrictions applied to certain businesses. So they pressed their grievances in court over attendance restrictions on the basis of First Amendment religious freedom as well as the 14th Amendment, which applies the Bill of Rights to state and federal matters alike.
The narrowness of the high court's Thanksgiving Eve ruling in favor of these Catholic and Jewish congregations — and the hostility some justices showed for one another's position — perfectly represents our nation: A significant segment of the population dismisses the virus as much ado about not much; another sees such attitudes (from top on down) as recklessly contributing to the needless hospitalizations and deaths we now witness. Given how the virus is reaching unprecedented levels of infection and death, I keep thinking of Waco-based philosopher Robert Baird's wonderful Aug. 30 essay in the Waco Tribune-Herald on how enforcement of our laws and rules must always be accompanied by good judgment — or, as President Theodore Roosevelt told Wacoans in a 1905 address, common sense.
The unsigned high court ruling, as well as two concurrences by Justices Neil Gorsuch and Brett Kavanaugh, acknowledge the gravity of the pandemic but suggest certain freedoms must endure in the face of public health measures, even when the latter are temporary. To quote the unsigned majority opinion: "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."
Where the majority opinion quickly goes off the rails and slides into everything from denial of the science behind viral spread and the forsaking of common sense is when Justice Gorsuch, referring to red, orange and yellow zones of infection in New York, too closely and too carelessly compares restrictions on places of worship with certain business entities deemed essential: "It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques."
By contrast, common sense imbues Justice Sonia Sotomayor's bristling, straightforward dissent, which takes special aim at Gorsuch: "Undeterred, Justice Gorsuch offers up his own examples of secular activities he thinks might pose similar risks as religious gatherings but which are treated more leniently under New York’s rules (e.g., going to the liquor store or getting a bike repaired). But Justice Gorsuch does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking and singing in close proximity indoors for extended periods of time.
"Unlike religious services, which 'have every one of th[ose] risk factors,' bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time," Justice Sotomayor writes, attaching sobering briefs from the American Medical Association and New York Department of Health. "Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily."
One does wonder where Justice Gorsuch gets his liquor. Do patrons sing for their bottles there? Pray perhaps? What does this ruling say about other activities that received even greater restrictions such as concerts or public lectures? Does this mean First Amendment free-speech rights should also be invoked in these venues and settings? Or are certain passages of the First Amendment more expendable than others? The court has opened a fine can of worms in the middle of a health crisis.
Justice Sotomayor adds for good measure, referring to Gov. Cuomo and the court's condemnation: "The governor’s comments simply do not warrant an application of strict scrutiny under this court’s precedents. Just a few terms ago, this court declined to apply heightened scrutiny to a presidential proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the proclamation as a 'Muslim Ban,' originally conceived of as a 'total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.’”
In short, Justice Sotomayor suggests the court's right-wing majority is cherry-picking when to stand tall for First Amendment religious rights: Is it only right and proper when Judeo-Christian worship is inconvenienced? For all the unsubstantiated claims to the contrary by so many Americans who claim to champion "originalism" in court decisions, the First Amendment says absolutely nothing about limiting religious freedom to Christians and Jews.
The decisions and dissents — six total in this one case — certainly mirror the aforementioned splintering of rationale and resolve in the midst of our pandemic calamity. One senses some embarrassment by Bishop Nicholas DiMarzio, not only because the governor's health restrictions had been lifted by the time the court ruling came down but also because of Pope Francis' Thanksgiving Day criticism of groups protesting COVID-19 restrictions. "I don’t think we’ve ever negated the rules that were imposed upon us, except we had a difference of opinion on the number of people that could go into a building,” the bishop said after the court decision. “That’s a big difference from flaunting the rules, as some congregations have done in Brooklyn and Queens. They refused to take precautions. That was not our case. We complied with everything we were asked to do and more. So, I think that it’s a big difference. I don’t think those words of the pope really apply to us — this is not an ideological issue. It’s not anti-government, but it is looking at the First Amendment that people have a right to worship when it’s possible.”
The dilemma percolates well beyond Brooklyn. Less than a week before the high court's scattershot of opinions, Dr. Emily Smith, Baylor University assistant professor of epidemiology and for some 20 years the wife of a pastor of congregations big and small, spent an hour advising area pastors on how to manage their Central Texas congregations at a time of unprecedented viral spread nationwide, even as the holiday season invites more church gatherings. She stressed that the virus is spread through four key factors: people assembled in enclosed spaces, exhalation (singing, shouting and "making a joyful noise"), crowding and a lack of physical distancing.
"When you put all four of these together, and these risks can compound on one another, churches are kind of primed for that," she said. "We sing, we shout, and it's all good in pre-COVID times. During COVID times, it makes it really risky."
Evidence of problems unique to worshiping emerged early on. Smith noted a Centers for Disease Control and Prevention-documented case in early March in which two symptomatic people attended church events and later tested positive for COVID-19. At least 35 of the church's 92 attendees subsequently contracted COVID-19, resulting in three deaths. And from viral spread extending from the church into the community, at least 26 further cases of COVID-19 were confirmed with an additional death. "These stories are becoming more and more prevalent," Smith told others through the Truett Church Network. "We're just not talking about it as much for lots of different reasons."
She lamented what infected the public resolve last spring, an ambiguous reference to the radical right's equating of mask mandates and lockdowns as tyranny: "There was a sense of solidarity and then something changed. And you guys saw it too. We all saw it. Somehow it became political and then it became religious, kind of."
The pushback Smith has personally received reflects the vigor of this resistance, including a hand-scrawled note brimming with hostility and rebellion: "STOP!! Emily! You are contributing to this panic problem. You are not a medical doctor! And you are helping destroy America. 1.4 million U.S. cases is .3% of our population and 83,000 deaths is .02%. Yet, you want to destroy 99% of people in this country. Get over yourself! You are not helping. You might as well take the mark of the beast, because you are being dooped [sic] bigtime!" [Italics here highlight words underlined in this note by the sender.]
Happily, local health officials and a strong mix of religious scholars and scientific researchers at Baylor University are helping many regional churches do right by their congregants and the communities in which they worship and which they presumably seek to benefit through biblically inspired works of charity and goodwill. That's worthy of high praise because by order of Texas Gov. Greg Abbott, McLennan County is again seeing local bars closed and restaurant occupancy sharply limited due to the fact patients suffering from COVID-19 now exceed 15 percent of local hospital capacity (almost reaching 20 percent by Wednesday). Churches in Texas remain relatively free of any public health restrictions, which means it's up to local faith leaders to decide what's best for all as the pandemic worsens.
Meanwhile, COVID-19 is increasingly serving up daily reminders of the human cost that goes beyond the battle over health statistics, some of the latter accurate, some clearly cooked for political ends. Consider Oklahoma City ICU nurse Lizanne Jennings, whose husband died of COVID-19 on Tuesday, just three days after her mother died of the same malady. In a CNN interview, anger understandably mixed with grief as she referenced the heartlessness of many Americans: "It didn't have to be this way, it just didn't have to be this way. Our family didn't have to be gutted. Everybody talks about the .01 percent or whatever it is. Well, 40 percent of my family is gone."
In local obituaries very often ambiguous about the cause of death, some families now choose to note one's passing of COVID-19, as if to say, "This loved one is more than a statistic to be debated and dismissed. This life had meaning. This life had value. This life was precious to some of us." The most recent examples included, just this week, one for retired CPA Rowland Dale "Pat" Pattillo Jr., who died Sunday at age 97. After noting he was a victim of COVID-19, his children, grandchildren and great-grandchildren highlighted his merits in life: "He was a man of conviction and principle, a good man, honest and hardworking. He was a philosopher and a student of life. He was smart, inquisitive, well read, always learning. In his 80s he enrolled in an Algebra II class at MCC because he felt like his mastery of the subject wasn't what it used to be. He read every day, subscribing to all sorts of magazines and periodicals. He read mostly of current events, issues of the day. He thought TV was a waste of time. He loved people and he always wanted to 'hear their stories.' He never met a stranger. He always had a smile on his face and got up every morning choosing to be happy." (The family also dutifully included what Pattillo believed should be the only words to mark his passing, whether of COVID-19 or anything else: "Those who loved and/or knew him are aware of his many failures and shortcomings, and his limited successes and awards. For those who did not, it doesn't matter." Perhaps, in a broader societal context, this also explains those who dismiss the viral contagion as particularly significant.)
Historians will likely pass stern judgment on the high court's opinion championing religious rights over innocent lives during a rampaging plague filling hospitals and morgues (and local officials this week have secured a refrigerated truck with space for 40 of us in case COVID-19 deaths overwhelm local mortuaries). Ironically, the far-right jurists behind the Roman Catholic Diocese of Brooklyn v. Cuomo majority opinion may find the needle harder to thread with any constitutional consistency if the opportunity arises to follow through on the steep expectations so many pro-life advocates have of them, specifically in scrapping in its entirety Roe v. Wade and thus sacrificing the rights of women on behalf of the innocent unborn — an already enormously complicated moral, ethical and constitutional dilemma. Just how does the solution many pro-life forces seek and pray for fit constitutionally with the court-ordered overriding of public health directives to keep infections from being transmitted from devoted worshipers gathered in sanctuary to innocent people moving about in the surrounding community, unwitting believers and non-believers alike? Whatever else our historians one day deduce, they may conclude that our tumultuous, conflict-ridden pandemic era of hundreds of thousands dead ultimately revealed just how many of us place premiums on some lives but not on others, highlighting a vein of hypocrisy that runs far, wide and very, very deep.
Even in the present, the chest-beating Nov. 25 court ruling stands uneasily alongside a jarringly cynical Nov. 29 White House coronavirus task force report that presses public health officials to "alert the state population directly" if local and state officials dither and hesitate and balk at policies and protocols safeguarding the public. Quite obviously, enough legal giants on the highest court in the land judge the situation dire enough to protect their own hides if not always those of their lowly subjects. Any Americans seeking to personally witness discourse and debate between jurists and attorneys over constitutional issues or to even visit the Supreme Court temple are today greeted with this: "Out of concern for the health and safety of the public and Supreme Court employees, the Supreme Court building will be closed to the public until further notice. The building will remain open for official business."
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