Above: 400 years after the Pilgrims came to America to seek religious freedom, religious freedom remains threatened.

This essay was first published in the Epoch Times on November 30, 2020.

The Supreme Court has protected religious liberty against the COVID police. The case was Roman Catholic Diocese of Brooklyn v. Cuomo (pdf). The “Cuomo” was New York Governor Andrew Cuomo. Let’s unpack the court’s decision.

The Facts

There were really two cases—one brought by the Diocese and the other by Agudath Israel of America, an orthodox Jewish denomination.  I’ll call the Diocese and Agudath Israel the “applicants” because they applied for a preliminary injunction. They sued to stop one of Cuomo’s executive orders addressing the CCP virus.

The order divided New York into red, orange, and yellow zones.  Restrictions were most severe in the red zones, least severe in the yellow.

The restrictions included limits on the size of gatherings. The limits for each kind of gathering depended on whether the governor deemed it “essential.”

As Justice Gorsuch observed in his concurring opinion, the border between essential and unessential “perfectly align[ed] with secular convenience.”  The governor deemed liquor stores, big box stores, bike shops, and acupuncturists as “essential.” But not churches or synagogues.

A house of worship in a red zone could admit no more than ten people at once, no matter how large and airy the building was. For orthodox Jews this was a huge problem. Jewish law imposes a quorum of ten men for worship. A limit of ten thereby excludes women entirely.

For Catholics it was also a huge problem. Catholics outside church, even if watching remotely, cannot take communion.

But “essential” establishments could admit customers almost without limit.

In orange zones, houses of worship could admit 25 at a time. There were no numerical limits on most other establishments, “essential” or not.

On the other hand, Cuomo’s order treated some gatherings even more harshly than houses of worship: Theaters in red zones were closed entirely, and in orange zones they were limited to ten patrons at a time.

The Remedy

The applicants claimed Cuomo had violated the First Amendment to the Constitution by discriminating against religion. They asked for a preliminary injunction stopping it. To get this, they had to show they would probably win after a full trial. A majority of the Court thought they would, and issued the preliminary injunction.

The Constitutional Background

The First Amendment says, “Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”  Properly understood, the Amendment restricts only Congress. One likely reason the Founders did not extend the rule to other federal agencies was that the executive branch needed flexibility to address religion in treaties and the courts would have to apply those treaties. The reason the Founders did not extend the First Amendment to the states was that state religious institutions then varied greatly.

In 1905, the Supreme Court decided Jacobson v. Massachusetts (pdf). The court upheld a state law mandating smallpox vaccination. The justices ruled that states have broad power over health issues, and that the vaccination law did not violate the Constitution.

During the current pandemic state officials and judges have relied on the Jacobson case. But in doing so, they forgot that much has changed since 1905. Throughout the 20^th century, activist liberal Supreme Court majorities largely re-wrote constitutional law.

Their revised constitutional law tends to favor the “progressive” agenda and lean against some traditional American values and practices. Today nearly all the justices—including those the media call “conservative”—adhere to the 20^th century cases that remodeled the Constitution.

The justices who rewrote constitutional law decided that rights they deemed most important were “fundamental” and deserved extra protection. Among these were rights in the First Amendment. Despite the Amendment’s limiting language, those justices extended it to the states and to all agencies of the federal government. They demoted many other rights as less worthy, and refused to fully enforce them.

Furthermore, much of this new constitutional law was structured to allow justices to manipulate the rules to serve their own political views. That’s why the 20^th century Supreme Court could uphold sending innocent Japanese-Americans to concentration camps, while springing vicious criminals on technicalities.

Why This Latest Case Wasn’t a Slam Dunk

You’d think this case should have been a slam dunk for the applicants. But it wasn’t, because the court follows 20^th century case precedents and the “rules” laid down by those precedents are easy to manipulate. They state that free exercise of religion is a “fundamental” right and that government generally may not “discriminate against” religion. But discriminate compared to what? Did Cuomo’s order discriminate against houses of worship because it treated them worse than essential businesses? Or was his order okay because it actually favored houses of worship over other areas of assembly, like theaters?

Moreover, even if you persuade a court that a measure discriminates against religion, the 20^th century case precedents say the measure is still valid if (1) it was adopted for a “compelling purpose” and (2) it is “narrowly tailored” (targeted) to that purpose. Whether a purpose is “compelling” is more of a political than a judicial decision. Whether it is “narrowly tailored” sometimes is doubtful.

Now add another ingredient to all that mush: 20^th century religion precedents were mostly laid down to protect small or marginal sects rather than mainstream denominations like Catholicism or Judaism. So in ways that only a person indoctrinated by law school can understand, this case could have gone against the applicants.

How the Justices Divided

All the justices concluded that fighting the CCP virus was a compelling purpose.  Otherwise, they formed three camps:

Camp #1: A majority of five justices ruled that the order had discriminated against religion. They said it was not “narrowly tailored” because there were less restrictive ways of protecting against the virus. They pointed out that both applicants were following rules of hygiene and social distancing, and that they had never had a CCP virus outbreak.

Camp #2: Justices Breyer and Kagan and Chief Justice Roberts had constitutional doubts about Cuomo’s order. But they dissented because during the litigation the Catholic churches and Jewish synagogues had been reclassified to yellow zones. These justices said the applicants could come back if severe restrictions were re-imposed.

Camp #3: This consisted only of Justice Sotomayor. She agreed with the other dissenters’ technical point. But she added that she didn’t think there was unconstitutional discrimination because houses of worship were more like theaters than like most businesses: they collect groups together for an extended period of time. Cuomo’s order treated religious congregations more favorably, not less favorably, than theaters.

Observe this: No justice applied the Constitution’s actual meaning. If one had, he or she probably would have concluded that the applicants should lose on First Amendment grounds but win on the Fourteenth Amendment’s Equal Protection Clause (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”).

Significance of the Case

This case was unusual in that it applied liberal precedent to reach a “conservative” result. It also reminded the COVID police of limits on their power, and that the Constitution survives, even in an emergency.

The most memorable opinion was written by Justice Gorsuch. In joining the majority, he reminded us that

“Government is not free to disregard the First Amendment in times of crisis . . . Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles. Today’s case supplies just the latest example. . . . 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.”

He added, that “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”