Above: Justice Neil Gorsuch wrote a memorable concurring opinion.
Yesterday, the Supreme Court called a halt to one form of petty COVID tyranny.
New York Governor Andrew Cuomo issued an executive order imposing severe restrictions on worship services in New York City churches and synagogues. He also decreed that businesses he deemed “essential”—such as big box stores, lawyers’ offices, and liquor stores—were wholly or partly exempt from those restrictions. Statements made by the governor suggested that one reason for the restrictions may have been retaliation against orthodox Jewish congregations, which had continued to meet while complying with all other health restrictions.
The Agudah Israel Jewish synagogue challenged the executive order. The Roman Catholic Diocese of Brooklyn joined in. The two religious organizations asked for a preliminary injunction against the order, pending Cuomo’s effort (no doubt in vain) to prove that it respected the First Amendment guarantee of free exercise of religion.
By a 5-4 vote, the Court granted the injunction in a case entitled Roman Catholic Diocese of Brooklyn v. Cuomo. The justices ruled that Cuomo’s order presumptively violated the First Amendment.
Dissenting on technical grounds were Chief Justice Roberts and the three-justice liberal bloc of Breyer, Kagan, and Sotomayor—even though all but Sotomayor seemed troubled by Cuomo’s overreach.
Although this was a victory for freedom of religion, readers must be warned against the media’s treatment of it as “conservative” or “originalist.” The Court reached its decision by applying the body of First Amendment precedent fashioned during the 20th century mostly by “progressive” justices. This case reflected an irony common these days: The majority the media calls “conservative” applied liberal precedent while the three most liberal justices argued against it!
In one respect, the Court finally caught up with this column: It recognized that the 1905 case of Jacobson v. Massachusetts—heavily relied on the COVID police—did not justify Cuomo’s restrictions. That’s in part because Jacobson has been largely superseded by the 20th century Court’s adoption of “tiers of scrutiny” analysis. This analysis includes the rule that the government must justify any infringement on the First Amendment by meeting a tough “strict scrutiny” standard.
The Court’s opinion was issued per curiam—meaning that no single justice wrote it. But five justices penned their own opinions as well. The most memorable was that of Colorado’s native son—Justice Neil Gorsuch. His sally sparkles with indignation and wit. Here are some excerpts:
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. . . . Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles. Today’s case supplies just the latest example. . . .
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 pickup 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?
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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.
Nor is the problem an isolated one. In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. . . . In far too many places, for far too long, our first freedom has fallen on deaf ears.
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Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.
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The First Amendment traditionally requires a State to treat religious exercises at least as well as comparable secular activities unless it can meet the demands of strict scrutiny—showing it has employed the most narrowly tailored means available to satisfy a compelling state interest . . . .
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Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras, it does not follow that the same fate should befall the textually explicit right to religious exercise . . .
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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.