Thursday, November 26, 2020 : By John Wesley Reid
The United States Supreme Court has ruled in favor of religious liberty and against unfair applications of alleged safety precautions.
At a glance:
In a late-night decision, the Court ruled 5-4 to grant temporary injunctive relief to the Roman Catholic Diocese of New York, Brooklyn. The diocese requested the injunction on the basis that New York Governor Andrew Cuomo’s executive order on COVID-19 restrictions was unfairly applied towards houses of worship. At the time of the injunction’s initiation, Executive Order 202.68 prohibited gatherings in houses of worship to 10 persons if the building was located in a designated “red zone.” Color-coded zones are determined based on the severity of COVD-19 cases within the zone’s jurisdiction.
While the argument could be made that restricting church services, even during a pandemic, is a violation of the First Amendment, this EO breaches mere intrusion on a fundamental right and instead discriminatorily applies unfair treatment on religious gatherings in contrast to other businesses that Gov. Cuomo apparently sees as “essential.”
Justice Neil Gorsuch opined a strongly worded rebuke of the EO, arguing that while it was understandable to have strong restrictions at the beginning of the pandemic, it is not right to prolong these restrictions and is certainly wrong to show favoritism towards some industries over religious liberty.
“Government is not free to disregard the First Amendment in times of crisis. At a minimum, that 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.”
Gorsuch was not shy in exposing the hypocrisy of the EO’s application:
“At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers ‘essential.’ And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, 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. Who knew public health would so perfectly align with secular convenience?”
“Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids. “
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
To be fair, the restrictions being challenged at the high court were no longer in effect. The alternation in restriction caused Chief Justice Roberts to rule against the injunction based on his view that the injunction was no longer needed. However, Gorsuch saw a bigger picture in that if they did not grant the injunction, then there would be nothing to stop Gov. Cuomo or other leaders from implementing the restrictions in the future:
“Even if the churches and synagogues before us have been subject to unconstitutional restrictions for months, it is no matter because, just the other day, the Governor changed his color code for Brooklyn and Queens where the plaintiffs are located. Now those regions are “yellow zones” and the challenged restrictions on worship associated with “orange” and “red zones” do not apply. So, the reasoning goes, we should send the plaintiffs home with an invitation to return later if need be.
To my mind, this reply only advances the case for intervention. It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”
“It is time—past time—to make plain that, 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.”
Gorsuch’s concluding statement mirrors an opinion he penned earlier this year in a similar case, where a Nevada edict limited church attendance to 50 persons regardless of the size of the church building, but only limited businesses including casinos to 50 percent occupancy. So, a church with a maximum occupancy of 1,000 can only host 50, while a casino with the same max occupancy can host 500. Gorsuch opposed such an unfair edict:
“The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Check out the Falkirk Center podcast with Rep. Jena Powell on lockdowns vs. liberty: