Critics of the U.S. Supreme Court’s Thanksgiving Eve decision on religious freedom claim that, as Chief Justice John Roberts said in his dissent, the decision wasn’t strictly necessary. The two cases that were decided together—Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel of America v. Cuomo—were moot by the time the High Court handed down its injunction barring New York governor Andrew Cuomo from limiting access to churches and synagogues in certain areas of New York City in an effort to stem the spread of the novel coronavirus. The state had already backed down on its rules capping attendance in some places of worship at 25 persons and at only 10 in others.
But the Court’s ruling granting extraordinary relief to the two religious organizations wasn’t just necessary. It was long overdue.
After almost a year of state governments being given carte blanche authority by the courts to enact emergency rules during the COVID crisis, it was time to remind governors like Cuomo that the Constitution, and specifically the First Amendment, hadn’t been repealed.
As Justice Neil Gorsuch stated in his concurrence, “Government is not free to disregard the First Amendment in a crisis.”
The Court’s action was a turning point in a struggle that has been going on since March. Faced with an unprecedented public health emergency, cities and states handed down a deluge of often arbitrary regulations that aimed, at least initially, to “flatten the curve” of the contagion and ensure hospitals were not overwhelmed with sick and dying patients. But as the pandemic continued to spread, with the atmosphere of fear spreading as fast as the virus, the willingness of people like Gov. Cuomo—whose credibility was called into question following his decision to order nursing homes to admit COVID-positive patients, a fatal mistake that led to thousands of deaths—to issue rules ignoring the Constitution increased.
The vast majority of Americans were willing to accept short-term sacrifices if it meant saving lives, especially when it came to the most vulnerable sectors of the population like the elderly. But almost from the beginning of the crisis, the arbitrary nature of many of the regulations—which allowed some large stores to operate while putting many mom-and-pop stores out of business—raised the hackles of many citizens.
Protests in June exposed the political motivation behind the lockdown rules. The same governments that were sending cops to shut down churches and synagogues, allegedly for violating rules prohibiting mass gatherings, turned a blind eye to the Black Lives Matter demonstrations—both the “mostly peaceful” versions and the riots and looting—that followed the death of George Floyd. They even encouraged those who gathered closely packed in the tens of thousands. This hypocrisy was repeated in the fall when Americans poured into the streets of large cities to celebrate Joe Biden‘s electoral victory over Donald Trump without interference from the mayors and governors who excoriated those who protested rules limiting the right of businesses to operate or churches and synagogues to open.
Equally dismaying was the utter contempt for constitutional rights that some state officials expressed openly.
In an interview with Gov. Phil Murphy of New Jersey, Fox News’s Tucker Carlson asked about a case in which 15 men were arrested in that state’s Ocean County for violating a stay-at-home order. Carlson reminded Murphy that, “The Bill of Rights, as you well know, protects Americans’ rights—enshrines their right to practice their religion as they see fit and to congregate together to assemble peacefully. By what authority did you nullify the Bill of Rights in issuing this order? How do you have the power to do that?”
Murphy’s answer was telling. “That’s above my pay grade, Tucker,” the governor responded. “I wasn’t thinking of the Bill of Rights when we did this.” While Murphy went on to talk about the danger of the virus and the need to respect science and for citizens to practice social distancing, he refused to speak to the issue of rights. As far as he was concerned, the discussion of constitutional rights in an emergency was solely the obsession of libertarian nutcases.
Nor was Murphy alone. The Supreme Court agreed with that approach in July when it was asked to decide Calvary Chapel v. Sisolak. In this case a local church challenged the decision of Nevada governor Steve Sisolak to impose strict attendance limits on houses of worship while allowing casinos to operate largely unhindered. How could it be constitutional to curtail religious freedom while protecting casinos?
The answer the Court gave was to essentially validate Murphy’s blithe answer to Carlson. The majority in the 5-4 vote (in which Roberts joined the Court’s four liberals) was to say that courts should defer to the judgment of governors in emergencies like the one the nation now faced.
As Justice Samuel Alito, one of the dissenters in that case, stated in a speech last month to the Federalist Society, the pandemic has provided the country with a “constitutional stress test.” He worried that under the circumstances, “religious liberty is fast becoming a disfavored right.”
The justice specified that he wasn’t “diminishing the severity of the virus’s threat to public health” or even “saying anything” about whether lockdown rules were “good public policy”—though the recurrence of the virus once they are lifted undermines the case for their efficacy. But he pointed out that “the pandemic has resulted in previously unimaginable restrictions on individual liberty” and that this had happened “by executive fiat rather than legislation.” The unchecked growth of the administrative state and the rule of unaccountable “experts” long precede the appearance of the coronavirus. But what Americans have experienced in 2020 is a sweeping away of legal norms that cannot be countenanced even in the midst of a crisis.
As Alito said, treating the right to religious freedom as being at least as important as that of a casino to operate shouldn’t have been a “tough call” in Calvary Chapel. If you look in the Constitution, he added, “you will see the Free Exercise Clause of the First Amendment which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause.”
What changed since July?
The answer is the tragic death of Justice Ruth Bader Ginsburg and her swift replacement by President Donald Trump and a Republican Senate with Justice Amy Coney Barrett. Even with Roberts performing his by now familiar role of voting with the liberals to forestall media criticism of the Court, Trump’s three appointees—Gorsuch, Brett Kavanaugh and Barrett—joined Alito and Clarence Thomas to create a majority that sought to restore the First Amendment to its former status as the indomitable source of our first freedoms.
Cuomo’s own words proved the discriminatory nature of the orders this new majority found unconstitutional. In comments aired on CNN, the governor made it clear that the only reason the lines of his clusters were drawn was to target ultra-Orthodox Jews.
While the notion that the ultra-Orthodox are unique in flouting coronavirus regulations is a canard, it is true that this community regards its right to continue its religious way of life—which centers on regular synagogue attendance, faith-based education and community gatherings to celebrate life cycle events and holidays—as non-negotiable. While many Americans have prized the perception of safety in a pandemic above their freedom and treated religious observance as expendable (for example, almost all non-Orthodox synagogues have remained closed since March with most resorting to services broadcast via Zoom or YouTube, an option that violates Orthodox restrictions on the use of technology on the Sabbath and holidays), the ultra-Orthodox believe the pandemic doesn’t justify giving up a lifestyle rooted in faith.
Doing what is necessary to save lives is a principle enshrined in Jewish religious law as well as common sense. But the ultra-Orthodox—who were ably represented in this case by the Becket Fund for Religious Liberty—like their Catholic neighbors who also sued to lift restrictions on their churches, think their right to live as they choose needs to be defended. They believe that being forced to give up communal prayer and gatherings even when masks are worn and social distancing is observed is not just an inconvenience but also a threat to their identity and rights.
As in the Nevada case, the question was not whether states can take action to save lives in a public health emergency. Rather, it was whether politicians, emboldened by the conceit that fear of the pandemic gives them unlimited power, can exercise authority in a way that discriminates against faith groups. That has happened across the nation as houses of worship—considered essential by people of faith but not by the secular—have been shut down as a host of non-religious businesses and institutions have been allowed to stay open.
Power-drunk politicians like Cuomo had seemingly erased the Constitution and used the pandemic to justify otherwise indefensible attacks on the right to free exercise of religion. But as Gorsuch wrote, “while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
The Court’s ruling won’t halt all governmental actions to deal with the emergency. But it does require politicians to prove that what they are doing is necessary—something Cuomo didn’t even bother trying to do—and not to downgrade religious freedom to a second-tier entitlement.
The challenge to Cuomo should be considered a landmark moment in constitutional law that halted the government’s drift away from the First Amendment.
Jonathan S. Tobin is editor in chief of JNS.org, a senior contributor to The Federalist and a columnist for the New York Post. Follow him on Twitter at: @jonathans_tobin.
The views expressed in this article are the writer’s own.
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