In light of trends in the past year or so, the op-ed page of The New York Times was the last place I expected to find sharp media criticism focusing on the U.S. Supreme Court, the First Amendment and, to be specific, religious liberty concerns during the coronavirus pandemic. Miracles happen, I guess.
Here’s the context. There was, of course, a tsunami of press coverage of the 5-4 SCOTUS decision overturning New York Gov. Andrew Cuomo’s aggressive rules controlling in-person religious services in New York. Frankly, the coverage was all over the place (and let’s not get started discussing the Twitter madness) and I had no idea how to write about it.
Thus, I was both stunned and pleased to read the recent Times op-ed that ran with this headline: “The Supreme Court Was Right to Block Cuomo’s Religious Restrictions.” That essay provided the hook for this week’s “Crossroads” podcast (click here to tune that in).
This op-ed was written by a former federal judge named Michael W. McConnell, who directs the Constitutional Law Center at Stanford Law School and Max Raskin, an adjunct law professor at New York University. While their essay includes lots of interesting information about the logic of the recent ruling, GetReligion readers will be interested in its commentary on how the decision was viewed in public discourse — including media coverage.
Here is a crucial block of material at the top that includes some specific facts that would have been appropriate in news stories:
Unfortunately, the substance of the decision has been drowned out by a single-minded focus on judicial politics — the first evidence that President Trump’s appointments to the court are making a difference. Maybe that is so. In the first two pandemic-related worship-closure cases to get to the court this year, it declined to intervene by 5-to-4 votes, with Chief Justice John Roberts joining the Democrat-appointed justices in deferring to state regulators. Last week’s decision went in favor of the Catholic and Orthodox Jewish plaintiffs, with the chief justice in dissent.
But politics is a distorted lens for understanding the case. Looking to the substance, six justices agreed that the Free Exercise Clause was probably violated by the governor’s order. The restrictions, which are far more draconian than those approved by the court in the earlier cases, are both extraordinarily tight and essentially unexplained. In red zones, where infection rates are the highest, worship is limited to 10 persons, no matter how large the facility — whether St. Patrick’s Cathedral (seating capacity: 2,500) or a tiny shul in Brooklyn. Because Orthodox Jewish services require a quorum (“minyan”) of 10 adult men, this is an effective prohibition on the ability of Orthodox women to attend services.
In other words, many journalists and public intellectuals — I am shocked, shocked by this — decided that Trump-era political divisions were more important than information about the legal and religious realities at pew level.
Raskin and McConnell argue that, when regulating constitutional freedoms as crucial as religious freedom, it is better to use a scalpel than a “meat cleaver.”
The same is true in news-media coverage of these issues. But, as GetReligion readers know, many — not all — journalists act as if political fights are “real,” while debates about religion are, well, not so real. I apologize for having to keep saying that.
Now, the initial news coverage of this decision at the Times was way better than the norm, in terms of exploring the content of the decision. However, here is a chunk of the material that dominated the top of that report (“Splitting 5 to 4, Supreme Court Backs Religious Challenge to Cuomo’s Virus Shutdown Order”):
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and the court’s three liberal members in dissent. The order was the first in which the court’s newest member, Justice Amy Coney Barrett, played a decisive role.
The court’s ruling was at odds with earlier ones concerning churches in California and Nevada. In those cases, decided in May and July, the court allowed the states’ governors to restrict attendance at religious services.
The Supreme Court’s membership has changed since then, with Justice Barrett succeeding Justice Ruth Bader Ginsburg, who died in September. The vote in the earlier cases was also 5 to 4, but in the opposite direction, with Chief Justice Roberts joining Justice Ginsburg and the other three members of what was then the court’s four-member liberal wing.
Many of the issues debated at SCOTUS in this case could have been seen, logically enough, in the details of earlier battles that made it into some news coverage.
All along, the debates that mattered focused on the word “essential” — as in religious sanctuaries do not provide “essential services” while casinos, big-box stores and liquor stores are “essential.” At the same time, there was substance to the arguments that the activities in many churches resemble what happens in theaters — only with everyone singing.
As we noted here at GetReligion, many journalists seemed to think this was a story in which religious believers could be divided into two camps — period. There were rational people who embraced online worship and dangerous people who rebelled against COVID-19 restrictions and insisted on elbow-to-elbow worship. Here’s how I described that standoff in one early GetReligion pandemic post:
The first [angle for coverage] was that most sane, science-affirming religious groups had moved their worship online and were cooperating with government authorities. The second was that there were lots of conservative white evangelicals who claimed (a) that God would shield them from the virus, (b) that COVID-19 was a myth, (c) they had some kind of First Amendment “religious liberty” right to gather for worship or (d) all of the above.
However, it soon became obvious that the reality was way more complicated than that. It was crucial, for example, that some government leaders seemed to be convinced that religious gatherings were uniquely dangerous and their regulations reflected that conviction.
Thus, I offered this summary in an April podcast and post (“Who-da thunk it? Drive-in churches are First Amendment battlegrounds”). This is long, but I think you will see the connection to the SCOTUS decision and the Times op-ed piece about it.
By this point, I had come to the conclusion that there were at least FIVE essential groups for journalists to study in this drama (which focused on drive-in services at that moment in time):
They are (1) the 99% of religious leaders who cooperated and took worship online, (2) some religious leaders who (think drive-in worship or drive-thru confessions) who tried to create activities that followed social-distancing standards, (3) a few preachers who rebelled, period, (4) lots of government leaders who established logical laws and tried to be consistent with sacred and secular activities and (5) some politicians who seemed to think drive-in religious events were more dangerous than their secular counterparts.
Say what? … Why were drive-in worship services — with, oh, 100 cars containing people in a big space — more dangerous than businesses and food pantry efforts that produced, well, several hundred cars in a parking lot? …
Meanwhile, you had people doing “essential” things at grocery stores and big-box discount stores that jammed parking lots and then had people (masks and gloves optional) getting out of their cars and going inside. Why was a drive-thru confessional — with the priest 10-plus feet away from someone in a car — more dangerous than that?
For the overwhelming majority of religious leaders — and most members of the Supreme Court — there was no question that safety concerns were valid, including in religious sanctuaries. That was never in doubt.
The question was whether government officials could, without offering facts and logic, be stricter when regulating religious freedoms protected by the First Amendment than when dealing with speech and assembly freedoms in secular settings. Did that point make it into many news reports?
Let’s end with that meat-cleaver image, again. McConnell and Raskin argue that at some point public officials will need to:
… recognize that it is time to bury the meat cleaver and begin to regulate constitutional freedoms with a scalpel — without the need for a judicial order.
That message is lost if the case is seen as the mere product of Justice Amy Coney Barrett’s arrival at the Supreme Court. With the presidential election behind us, the balance between Covid-19 precautions and civil liberties no longer needs to be a partisan issue. The right to exercise religion in accordance with conscience is one of the most important in the Bill of Rights, and it is time for mayors and governors — and courts — to treat it that way.
Ditto for journalists who are covering these issues.
Thus let me say this, again: Hey editors! Why not (hire and) assign religion-beat specialists to some of these stories?
Enjoy the podcast and, please, pass it on to others.
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