An old adage warns that “the devil is in the details.” This is especially true of the law, where “standards of review” and precedents (stare decisis) can eviscerate the clearest constitutional norms while apotheosizing the most nebulous.
Case-in-point: Linda Greenhouse’s July 30 New York Times diatribe “The Supreme Court’s Religious Crusaders Take on the Pandemic Response.”
Greenhouse scores the four dissenting justices in Calvary Chapel v. Sisolak, a suit that sought an injunction against Nevada’s COVID-19 rules capping attendance at religious services at fifty persons while imposing no such limits on casinos. The church asserted that its right to free exercise of religion was being violated when indoor assembly rules were more permissive for gambling dens than for houses of worship. It lost 5-4, with Justice Alito penning a powerful dissent which opened:
The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID-19 pandemic, he has issued a directive that severely limits attendance at religious services.
Supporting Governor Sisolak’s claim, Greenhouse predictably throws the kitchen sink at the dissenters. She accuses them of “ferocity” while she is presumed to be measured in accusing the dissenters—three times—of launching a “crusade” that ignored the “well-documented” nexus between church attendance and contagion spread. Setting aside “public health,” the justices—but for Chief Justice Roberts’ concern for institutional credibility—would have “inevitably place[d] the Supreme Court where it least belongs and where it is least qualified to be, at the center of a national debate [over] public health [by] opening its doors to a battle not its own.”
Greenhouse basically reduces free exercise of religion, an explicitly articulated constitutional right, to one special interest among many, which, in the course of making public- health policy choices—presumably with some fig leaf of fact to support or at least cover them—state officials can compromise or abridge. Governor Sisolak chose to treat houses of worship like other indoor gathering venues; the only interest he privileged was that of casinos.
Greenhouse is completely oblivious to the fact that the Constitution does not treat religion as just another Madisonian “interest” but rather as a right (indeed, as the late Rev. John Neuhaus tirelessly noted, the first right in the First Amendment written by Madison) to be protected. But in the last 70 years, the Supreme Court’s First Amendment jurisprudence has used a “wall of separation”—pretending that society can be immunized from religious influence—to pen in religious freedom. It is a jurisprudence so incoherent that it seems its primary justification has been that it found five justices at a given moment to agree on it. Likewise, we have allowed the judicial doctrine of “laws of general applicability” to undermine the “strict scrutiny” we might otherwise apply to abridgements of a First Amendment right, at least when it comes to free exercise of religion. The devil’s in the details.
My question is: Would Greenhouse countenance anything similar when it comes to the über right of abortion?
Whereas she is willing to give nearly unlimited deference to political and judicial decisions that interfere with free exercise of religion—as long as they can somehow plausibly be related to protecting the public health against the mortal threat of COVID-19—she would never afford an analogous scope of deference to those that interfere with free exercise of abortion, what Greenhouse and other abortion advocates automatically brand under the pejorative title of “TRAP (Targeted Restrictions on Abortion Providers) Laws.” No claim that such regulations advance the public health, including the welfare of women, ever receives prima facie acknowledgement before her hermeneutic of suspicion. It’s clearly part of one big plot, one “vast right-wing conspiracy” to take away “choice.”
Where Greenhouse scolds the Court for even having taken up the Calvary Chapel case, no violation of “choice rights” is ever too incidental not to warrant a federal judge issuing an immediate injunction against it. Do we believe for a minute she would have extended a shard of credibility to any state COVID-19 order that included a ban on abortion among its restrictions on elective surgery?
Consider Greenhouse’s columns: www.nytimes.com/2020/03/12/opinion/abortion-supreme-court.html
www.newyorker.com/news/q-and-a/a-supreme-court-reporter-defines-the-threat-to-abortion-rights prior to the June 29 June Medical
www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf ruling, which insisted that public health norms—including Louisiana’s admitting privileges requirement—were just covert attempts to stop abortion. She was certainly unwilling to consider that carpetbagger abortionists who fly in from other states to provide their services, with no nexus to the local medical establishment, might potentially undermine public health. No, absolutely no local discretion there: The Pelican State would have to close down too many abortuaries to apply that standard.
Remember, free exercise of religion is an explicitly expressed textual constitutional right. Abortion remains an “emanation” of “penumbras” of the “right to privacy.” Where exactly it is to be found in the Constitution remains a sweet mystery of life but, the Court assures us, like the old Prego spaghetti sauce commercial, “it’s in there.”
Abortionists would like to apply standards of strictest scrutiny to abortion litigation. Planned Parenthood v. Casey was seen as a mortal threat because it might have relaxed Roe’s strict standards, although in the end the “undue burden” standard Casey imposed was sufficiently flexible to achieve whatever outcome a five-person majority of the Court might seek in a given case.
Which is what makes Greenhouse’s arguments so risible. Casey’s sufficiently loosey-goosey “undue burden” standard means the Court will always be what the dissenters in Roe warned against: an unelected national super-legislature that sets America’s abortion rules according to its predilections, invariably involved in fine-tuning those norms from sea to shining sea. Discussing Calvary Chapel, where a real constitutional right is at issue, Greenhouse rails against the Court intruding “where it is least qualified to be and “opening its doors to a battle not its own” on religious freedom. But she would prop those doors open so wide on abortion that even abortionists could not be refused “standing” to bring suits against laws that arguably benefit their patients (even as they threaten their profits). Can you imagine any other “doctors” being entitled to claim practical immunity from laws (like malpractice laws) seeking to protect women’s health? No, no conflict of interest there, friends, nothing to see here, keep on moving along . . .
Abortion and Greenhouse bring to mind an old Willie Nelson song: “You Were Always on My Mind.” Greenhouse’s opposition to the Court even taking the Calvary Chapel case comes from her desire to expand the grounds of stare decisis (in which, post-June Medical, she perhaps thinks she has an audience in the Chief Justice). She insists Calvary is essentially no different from South Bay United Pentecostal Church v. Newsom, a suit similarly challenging tougher state rules on churches, decided May 29 on a similar 5-4 split. Not respecting “precedent” always risks the Court’s institutional credibility (a theme also thought to resonate with the Chief Justice), at least as that credibility is understood by Greenhouse and friends. On the other hand, if you litigate an abortion case until you win, it’s just dogged defense of your “rights.”
Two cases, two rights, double standards.