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Thursday, November 26, 2020

Baseline Hell in Brooklyn: The Futility of Neutrality Talk in Roman Catholic Diocese v. Cuomo

With weary predictability, each side, secular and religious, is playing its accustomed role in the Roman Catholic Diocese of Brooklyn v. Cuomo. Is a religious service more like a visit to a liquor store? Or more like attending a movie house? If the former, then Cuomo’s order strictly limiting numbers of attendees “single[s] out houses of worship for especially harsh treatment,” as the per curiam opinion declares. But maybe religious services are more like a night at the movies, because (as Breyer notes in dissent) “the risk of transmission is higher when people are in close contact with one another for prolonged periods of time.” On this view, a few minutes spent grabbing and buying Old Forester is just not the same as an hour spent singing hymns in close proximity to other singers.

Welcome to baseline hell, that infernal prison for all those who think there is an easy way to define “neutral” treatment in a polarized age. In baseline hell, no one can agree on the proper baseline by which to measure “neutrality.” This disagreement about baselines insures that "neutrality talk" is a waste of breath, because there is no Olympian perspective of some "reasonable observer" by which to assess whether or not a law is covertly discriminatory or scrupulously impartial.

The futility of “neutrality talk” in baseline hell is well-illustrated by Justice Kavanaugh’s concurrence in Roman Catholic Diocese. Justice Kavanaugh suggests a “most favored institution” rule of automatic suspicion towards even apparently neutral regulations. “[O]nce a State creates a favored class of businesses, as New York has done in this case,” Kavanaugh states, “the State must justify why houses of worship are excluded from that favored class.” This rule of "neutrality" is plainly a special exemption for churches, because there will always be some non-church institution that will enjoy some “special” treatment not generally available to others. Hospitals, for instance, will always be deemed “essential” in a pandemic. Must the state then explain carefully why churches are not like hospitals when the latter are allowed to perform surgeries but the former are banned from performing baptisms? To religiously minded people, however, Kavanaugh’s rule looks like a sensible safeguard against the hidden anti-religious prejudices allegedly coloring the Secular Left. If the "elaborate system of exemptions and waivers" in Trump's a travel ban could give rise to suspicions of anti-Muslim bias, as Breyer argued in his dissenting opinion in Trump v. Hawaii, then why can't the equally elaborate and perplexing system of restrictions in Cuomo's order raise similar suspicions? After all, Cuomo's order contains completely absurd elements such as the ten-person limit on church attendance regardless of the size of the meeting place where the religious service is conducted. Why doesn't such absurdity suggest deliberate indifference to religious needs?

Here are two suggestions for etiquette in baseline hell: (1) Stop with the question-begging “neutrality talk,” and instead (2) try to see things from your opponents' point of view rather than the viewpoint of some imaginary “"reasonable observer." So viewed, Cuomo’s executive order looks like really sloppy work. Was it biased against religion? Who knows -- and why should we care? Regardless of how we answer that unanswerable baseline question, the order's sloppiness was likely to inspire distrust from religious people. That distrust, far more than anything done by SCOTUS, undermines effective pandemic response.

Posted by Rick Hills on November 26, 2020 at 09:41 PM | Permalink


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Posted by: Miledsmith | Nov 29, 2020 1:03:21 AM

" try to see things from your opponents' point of view rather than the viewpoint of some imaginary “"reasonable observer." So viewed, Cuomo’s executive order looks like really sloppy work"

Yes, your opponent [well maybe not YOUR in this specific case] is often going to think something is "sloppy." This is somewhat limiting. At some point, you will have to try to see if they are sorta right, sorta wrong, really wrong etc. IOW, you will have to try to find some sort of third "reasonable observer" vantage point.

I respected Roberts' comment, one that I have basically repeatedly used myself and not always against my opponents criticizing my side as unhinged sorts that make stuff up ... also sometimes to my own side that said the same thing about our opponents:

"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.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution."

And, lots of "religious people" agree with the dissenters. Religious people come in all shapes and sizes. Lack of nuance there inspires distrust too.

Posted by: Joe | Nov 27, 2020 1:27:45 PM

Or rather, quoting again Justice Sotomayor:

" New York treats houses of worship far more favorably than their secular comparators" ( p.3 to her dissenting).

Posted by: El roam | Nov 27, 2020 7:47:05 AM

Important issue. But, this is the whole idea of neutrality or being neutral. To, as the respectable author of the post suggests: " ...see things from your opponents point of view". And that is what (at least to some extent) Justice Sotomayor did in her dissenting, stating that, I quote:

" Likewise New York " treats more leniently only dissimilar activitivies, such as operating grocery stores, banks, and laundromats, in which poeple neither congregate in large groups nor remain in close proximity for extended periods. That should be enough to decide this case"


Posted by: El roam | Nov 27, 2020 7:39:50 AM

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