Why Does A Law’s Discriminatory 'Effect' Matter Only To Free Exercise Claims And Not To Equal Protection Claims?

The evidence the court used to find discrimination in New York was that retail stores were being treated differently than megachurches.

The U.S. Supreme Court (Photo by David Lat).

The effect of a new supermajority conservative Supreme Court took less than a month to demonstrate itself. In Catholic Diocese of Brooklyn v. Cuomo the Supreme Court, with the chief justice dissenting, granted an injunction against a New York State executive order that placed occupancy limits on places of religious worship in areas classified as “red” or “orange” zones. In red zones, no more than 10 people are allowed to assemble because of the level of COVID-19 infection within the area, in less serious orange zones the occupancy limit was 25. To be clear, plenty of other places of assembly that could be comparable to indoor church services, such as movie theaters, concerts, and sporting events were subject to these same occupancy restrictions. Indeed, these similar albeit purely commercial activities were in some cases shut down entirely and therefore treated more strictly than churches. Nevertheless, because dissimilar establishments such as some corner commercial retail stores were not subject to the exact same level of regulation as megachurches, the Supreme Court granted an injunction against the occupancy limits that were being imposed on churches.

Meanwhile, over in the Sixth Circuit Court of Appeals a religious liberty injunctive challenge to the Governor of Kentucky’s executive order prohibiting in-person instruction in all public and private schools failed. Yet, in issuing its opinion the Sixth Circuit distinguished itself from the New York case stating that “[u]nlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were ‘targeted or gerrymandered’ to ensure an impact on religious groups.” But what exactly was the evidence that New York Governor Cuomo had “targeted” or “gerrymandered” religious groups with the executive order?

The evidence the court used to find discrimination in New York was that retail stores were being treated differently than megachurches. In his concurrence, Justice Gorsuch states that at a minimum the First Amendment “prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available.” As justification for this standard Justice Gorsuch cites to Church of the Lukumi Babalu Aye v. City of Hialeah. In Lukumi the question before the court was whether the exempted or unregulated activity posed a similar or greater risk to a recognized interest of the state. The problem, which neither Gorsuch nor any of the majority addresses in Roman Catholic Diocese, is that retail stores are not only dissimilar from megachurches, they are undeniably not as dangerous to public health during the COVID-19 pandemic. In other words, retail stores and megachurches are not comparable at all.

How do I know this?

Well, in California, before this new superconservative majority SCOTUS came to be, a similar claim to the one made in New York was rejected. In California’s brief to the court an epidemiologist with the California Department of Health explained, that unlike concerts, sporting events, movie theaters, or church services, people in corner retail stores, grocery stores, banks, and laundromats do not generally speak (or sing) together, or stay in close proximity for extended periods. Interestingly, and altogether tellingly, despite the inherent difference between a corner retail store and a megachurch, movie theater, or sporting event with a capacity to seat a thousand people, and how that inherent difference relates to the risk posed in our current pandemic, the Supreme Court does not justify its comparison of churches to commercial retail. But the Supreme Court’s silence on this rather obviously ridiculous comparison is not the only flaw here.

Although it involves a discussion of a separate constitutional right to equal protection, the fact that race claims suffer under a much more difficult burden of proof than what was applied in Roman Catholic Diocese should be a national scandal. Think about the amount of direct evidence of racial discrimination by government that is out there that stands to go unrecognized or unpunished by our courts. Then think about what it would mean if all it took to prove a law had a racially discriminatory “effect” was that it appeared “targeted” and “gerrymandered” to ensure an impact on racial groups. The reality is equal protection claims are notoriously difficult to satisfy and the Supreme Court has effectively closed the courthouse door to claims of racial discrimination. Even when there is clear proof that government officials were treating those of a certain race differently, and harmfully, when compared to other races.

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When one compares the standard of proof the Supreme Court requires from equal protection claims with the standard of proof the court requires for religious discrimination claims what you are left with is a clear impression of favoritism for religious claims. In the end it really is that simple, the Roman Catholic Diocese case was simply outcome driven by a conservative favoritism of religion. Nothing in the text of the Constitution justifies burdening equal protection racial claims with standards of proof greater than what is needed to satisfy a religious discrimination claim. The reason religious claims are currently favored, and racial claims disfavored, is entirely because conservative politics favors the former and disfavors the latter.


Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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