Blocking an action taken by New York Governor Andrew Cuomo’s in response to the worsening deadly pandemic, the Supreme Court’s recent 5-4 decision, in Roman Catholic Diocese of Brooklyn v. Cuomo, disallowed Cuomo’s restricting the number of attendees at religious services. Concurrences and dissents in the case involved some scrapping among the justices; the public response involves some dismay among those who see this Court—it has an ideological bias that President Trump may have shaped for generations—enjoying the first of many likely victories for obstructing government regulation, even while over-privileging religion.
The press amply covered the judicial wrangling, which, though wrapped in the usual formal language, felt personal, even peevish. Justice Gorsuch, a Trump appointee, not simply disagreeing with his dissenting colleagues, mischaracterized their position, ascribed motive to them, and sententiously trolled them:
Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.
Chief Justice Roberts, writing in dissent, snapped back in defense of the dissenters, something he rarely does:
To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.”… They simply view the matter differently after careful study and analysis reflecting their best effort to fulfill their responsibility under the Constitution.
Justices’ accusing one another of bad faith is nothing new, but today I’m not doing the history of non-collegiality among justices. I’m more interested in the First Amendment basis of the 5-4 decision. And the basis of the dismayed responses to it.
It’s worth noting, up front, a crude apparent contradiction. The argument made by the right-wing majority looks a lot like a First-Amendment absolutist argument—the kind of thing that some liberals and some on the left might be expected to endorse in certain other contexts. I think liberal and left critiques run into trouble here because lot of liberals and leftists are secularists, and a lot of secularists can’t think about the religion parts of the Constitution without cringing, or at least looking around for something that seems more worthy of their attention. Assessing the majority opinion in this case, however, requires looking at something many people don’t look at much: the nature of the legal doctrines of religious freedom enshrined in the Constitution.
Those constitutional doctrines are very—to use a term of art—weird. And their history is even weirder.
Say “First Amendment” and a lot of people respond “freedom of speech,” but the amendment begins with religion. Some say that the First Amendment, being first, was the amendment most important to the founders, and if that’s true, then the first thing it protects may have also been the most important thing to them. That’s religion, as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Only then comes the phrase that many liberals and conservatives often take to be the amendment’s core: “…or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Nobody knew how to use punctuation back then, especially semicolons; that’s my opinion (the problem is they thought they did). So the way I parse the sentence, it’s built around three words—they’re participles—telling us what kinds of laws Congress shall not make: laws establishing, prohibiting, and abridging. Freedom of speech, press, and assembly—the greatest hits, the non-religion stuff—are objects only of the third participle, which tells us what Congress can’t be abridging. Religious freedoms, however, are objects of both establishing and prohibiting. Syntactically, religion scores two of the three participles that organize the sentence: two thirds of the First Amendment!
Grammar nerdery aside, all of that is just to say that to the founders, one of the most important purposes of the first ten amendments to the Constitution was to prevent Congress from making any law respecting an establishment or prohibiting the free exercise of religion. To put the importance in context, though, we do briefly have to consider what established religions are: monopolies on religion, created by law, publicly supported by dedicated taxation, often requiring religious oaths for office, sometimes mandating religious practice, with fines and other punishments for non-compliance.
We see creeping religious establishment today. Congress opening its sessions with prayer. Judges posting the Ten Commandments in courthouses. Vice President Pence quoting President Trump (not all that convincingly): “As President Trump said not long ago, quote, ‘Every person is worth protecting. Every human soul is divine and every human life, born and unborn, is made in the holy image of almighty God.’”
There are a lot of good reasons not to establish churches. Recently the TV drama “The Handmaid’s Tale,” based on Margaret Atwood’s novel, offered one view of the potential. When they wrote the Constitution, though, the founders weren’t thinking “Oh man, what if something like ‘The Handmaid’s Tale’ happens someday, that would be bad.” Back then, established churches weren’t a dystopian concept all too likely to become real, whether by creep or takeover. Established churches were already real, indeed a norm.
England had its Church of England, of course—and still does--and other nations had theirs, but what’s most relevant to the Constitution is that the American states had them too. Churches had been legally established by the colonial and then by the state legislatures. In some states, the established church was C. of E., in others Congregationalist; some states allowed more religious freedom than others. When the Constitution was written, some of the legislatures had disestablished their churches, but some wouldn’t disestablish for years to come.
Hence a tricky situation facing the founders. Congress was a brand new legislature, national, but very much in the mold of older American legislatures like that of Massachusetts, Virginia, etc. Congress therefore might have been expected to establish a national church. Not in a sneaky Pence way, getting dogma into government policy, but naturally, openly. Because that’s something legislatures naturally, openly did. So the framers stopped Congress from doing so.
But with a twist.
The framers didn’t say “Congress shall make no law establishing a religion.” They said “Congress shall make no law respecting an establishment of religion.”
That’s a powerful difference. The First Amendment did prohibit Congress from establishing a religion. But it also prohibited, crucially, Congress from preventing the states from establishing religions.
To think for a moment like the founding generation (not like us): a big controversy in Congress’s establishing a national religion would have been that the national church might supersede the states’ established churches, or divide citizens’ religious loyalties and obligations. What the First Amendment pointedly meant to say, therefore, is that if the states want to keep their established religions, or even establish new ones, Congress can’t stop them.
For a long time, if you were a citizen of, say, New York, you had constitutional protections only against the federal government. The federal government couldn’t make you go to a certain church, or take your money to support it, or restrict your exercising whatever religion you liked or exercising no religion at all. But New York could do any or all of that, and you had no constitutional protection against it. On the contrary: New York had a First Amendment protection. The amendment blocked the federal government from interfering with its power to push you around on religion.
That’s what our founders meant to achieve when they opened the all-important First Amendment with “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
* * * *
Then everything changed—so totally that the founders wouldn’t understand the decision in Roman Catholic Diocese of Brooklyn v. Cuomo. The decision is based on the idea, unrecognizable by them, that the state of New York is constitutionally prohibited from restricting the free exercise of religion and—even less recognizably—that the federal government, far from being barred from interfering with the states in matters of religion, is constitutionally required to go up against the states in defending an individual right of free exercise.
We already know about that change. Most people concerned with individual liberties are keenly aware that the Constitution gives federal us protection against states’ infringements on our rights. We know the famous history of voting and other civil rights enforced by the federal government when states set out to deny them.
The source of the change is the Civil War. With Union victory, new constitutional amendments revised, in one fell swoop, the elemental founding relationship among citizens, state governments, and the federal government. All citizens of the United States suddenly had the protection of the federal government—on paper! these protections were systematically denied black citizens for many generations—in asserting individual rights against their states. It took time, and it took court cases, but freedom of religion, speech, press, and protest—all of the rights enshrined in the First Amendment—were extended to citizens against their states a long, long time ago.
The situation remains a bit strange, though, because the First Amendment still says “Congress shall make no law”: you have to mentally caret in “and the states” after “Congress.” That simple, invisible insertion, part of a revolution in the nature of the country, was never documented in the amendment itself. And yet the revolution turned the founders’ Constitution into the modern Constitution. We’re not going back.
The religion part of the amendment in particular is an oddity today, in ways that come up when considering the purport of Roman Catholic Diocese of Brooklyn v. Cuomo. Regarding the greatest hits—speech, press, assembly—the post-Civil War meaning of the First Amendment shored up an individual right by giving it a broader protection than the words say it does. The religion language is different, though. The amendment originally gave a key protection, against the federal government, not to the individual but to the states. Now the state now has no such constitutional protection. Regarding religion, the modern First Amendment now says—not something broader than it used to say—but the exact opposite of what it used to say.
The same words that once meant “the federal government can’t prevent the states from restricting individuals’ religious freedom” now mean “the federal government has a duty to prevent the states from restricting individuals’ religious freedom.”
You can’t make this stuff up! (And I didn’t. Below you’ll find links to some further reading.)
In Roman Catholic Diocese of Brooklyn v. Cuomo, the oddness inherent in the First Amendment’s phrase on religion points us to a political and historical irony. Governor Cuomo is more or less a liberal. (We can argue about that another time, but come on: I mean ideologically he’s not in the right-wing traditions of the majority on the Court.) The 20th-century political liberal tradition that produced an Andrew Cuomo benefited mightily from applying the post-Civil War amendments to federal judicial decisions, and yet in this case, Cuomo’s effort to limit church attendance would have been on solid ground under the original, pre-Civil War meaning of the First Amendment. The Court would have had no standing here. New York could have gone right ahead and limited the number of people attending religious services during a deadly pandemic. New York could have gone right ahead and done so even while leaving liquor stores open. New York could have become a drunken atheist’s haven, for all the founding Constitution of the United States had to say about it.
By the same token, the right-wing majority on the Court—dead set against 20th-century social-contract judicial liberalism, which came from applying the post-Civil War amendments against the states—are scions of a long movement to obstruct those federal protections for voting and other civil rights, a movement based on appeals to “states rights.” Yet in this case, the majority is bringing federal power to a crusade against a state, in favor of a near-absolute, near-libertarian concern for an individual right.
Skepticism will abound regarding how this right-wing judicial crusade on behalf of the individual against a state holds up in areas other than religion: policing, protest, voting, etc. Interesting new uses of state power by liberal policymakers are ongoing too. Meanwhile, the curious history of religious freedom in America—curioser and curioser—has taken another step.
(N.B. I cop “skim/swim/dive” from the digital museum world. I don’t know who first came up with it, but it’s not original with me. )
Thomas Jefferson weighs in on the original nature of all first-amendment protections. Here Mister Free Speech and Freedom of Religion insists that only the federal government can’t restrict individual rights, and that the states can. https://founders.archives.gov/documents/Jefferson/99-01-02-0348 (search “while we deny that Congress have a right”)
On the process of incorporating the fourteenth amendment into the Bill of rights. https://www.law.cornell.edu/wex/incorporation_doctrine
Some deep, contentious scholarship on the original meaning of the religious-establishment language in the First Amendment. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1280&context=jcl. This article cites an article that has far more heavily influenced my thinking on the issue, "Rethinking the Incorporation of the Establishment Clause: A Federalist View," in The Harvard Law Review, butthat article is available only behind the JSTOR paywall, so I won’t link to it. If you do have access to JSTOR, you can easily find it.