In his concurring opinion in the New York case, Neil Gorsuch, Trump’s first Court appointee, denounced the state’s limits in unusually confrontational and barbed language.* Ignoring public-health arguments that indoor religious gatherings pose unique COVID-19 risks—because they involve large numbers of congregants in close proximity singing or speaking—Gorsuch portrayed New York’s rules as reflecting a singular disdain for religious devotion.
“At least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”
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Gorsuch’s language in the New York case echoed an unusually antagonistic recent speech from Justice Samuel Alito to the conservative Federalist Society. In that address, Alito also portrayed religious believers as under siege from an increasingly secular society. “Religious liberty,” Alito insisted, “is fast becoming a disfavored right.” Brett Kavanaugh, another Trump appointee, expressed similar deference to religious-liberty arguments at his confirmation hearings. Jenny Pizer, senior counsel for Lambda Legal, which focuses on cases involving gay rights, spoke for many critics when she told me the justices’ rhetoric was tinged with “a white-Christian religious-victim narrative that we’ve been hearing amplified for one decade, two decades now.”
Still, Tim Schultz, the president of the First Amendment Partnership, argues that despite the heated rhetoric, the Court has been relatively cautious in practice. Justices have generally avoided big leaps that would radically expand the ability of religious groups to opt out of secular laws. “I think the Court will likely continue to act in an incremental way rather than in the way that some conservative triumphalists would like them to act,” Schultz told me. “But I do think the direction will be … consistent in rulings for the free exercise of religion.”
The partisan re-sorting of the nation’s religious landscape seems certain to generate more cases that heighten the tension. In PRRI polling, almost exactly two-thirds of Republicans identify as white Christians, a level last reached in American society overall in the late 1990s; Democrats, by contrast, divide about in thirds between white Christians, nonwhite Christians, and nonreligious or non-Christian people. Similarly, the network election exit polls this year found that while white Christians still provided fully two-thirds of Trump’s votes, Joe Biden garnered a bigger bloc of support from nonreligious and non-Christian Americans (about 40 percent of his voters) than from either white or nonwhite Christians.