Reviewers of the U.S. Supreme Court’s Thanksgiving Event decision on religious freedom claim that the decision is not absolutely necessary, as Chief Justice John Roberts said in his dissent. The two jointly decided cases – Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel of America v. Cuomo – were irrelevant when the Supreme Court issued its order prohibiting New York Governor Andrew Cuomo from restricting access to churches and synagogues in certain areas of New York City to stem the spread of the novel coronavirus. The state had already withdrawn its regulations limiting attendance to 25 people in some places of worship and only 10 in others.
But the judgment of the court, which granted extraordinary relief to the two religious organizations, was not only necessary. It was long overdue.
After the state governments had been given carte blanche by the courts for almost a year during the COVID crisis to issue emergency regulations, it was time to remind governors like Cuomo that the Constitution and especially the First Amendment had not been repealed.
As Judge Neil Gorsuch stated in his agreement, “the 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 enacted a flood of often arbitrary regulations, which, at least initially, aimed to “flatten the curve” of infection and ensure that hospitals were not overwhelmed with sick and dying patients. But as the pandemic spread, with the atmosphere of fear spreading as fast as the virus, the willingness of people like Governor Cuomo-whose credibility was questioned after his decision to order nursing homes to accept COVID-positive patients-to enact rules that ignore the Constitution, a fatal mistake that led to thousands of deaths, increased.
The vast majority of Americans were willing to accept short-term sacrifices when it came to saving lives, especially when it came to the most vulnerable groups such as the elderly. But almost from the beginning of the crisis, the arbitrariness of many regulations – which allowed some large stores to operate while putting many mom-and-pop stores out of business – shook the nerves of many citizens.
Protests in June revealed the political motivation behind the closures. The same governments that sent policemen to close churches and synagogues for allegedly violating the 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 took place after the death of George Floyd. They even encouraged those who had gathered in their tens of thousands, crowded together. This hypocrisy was repeated in the fall, when Americans flocked to the streets of major cities to celebrate Joe Biden’s election victory over Donald Trump without the interference of mayors and governors, who angered those who protested against regulations that restricted the right of corporations to do business or open churches and synagogues.
Equally disturbing was the complete disregard for constitutional rights, which some state officials openly expressed.
In an interview with Governor Phil Murphy of New Jersey, Tucker Carlson of Fox News asked about a case in which 15 men were arrested in Ocean County of that state for breaking house rules. Carlson reminded Murphy that “the Bill of Rights, as you well know, protects the rights of Americans – their right to practice their religion as they see fit and to gather together to assemble peacefully. By what authority have you overridden the Bill of Rights by this order? How do you have the power to do so?”
Murphy’s answer was revealing. “This is above my pay grade, Tucker,” the governor replied. “I wasn’t thinking about the Bill of Rights when we did this.” While Murphy continued to talk about the threat of the virus and the need to respect science and that citizens should practice social distancing, he refused to talk about the issue of rights. To him, the discussion of constitutional rights in an emergency was just the obsession of libertarian madmen.
Murphy was not alone. The Supreme Court agreed with this approach in July when he was asked to rule Calvary Chapel vs. In this case, a local congregation challenged the decision of Nevada Governor Steve Sisolak to impose strict attendance restrictions on places of worship while allowing casinos to operate largely unimpeded. How can it be constitutional to restrict religious freedom while protecting casinos?
The answer the court gave was essentially to confirm Murphy’s cheerful response to Carlson. The majority in the 5-4 vote (in which Roberts joined the court’s four liberals) felt that the courts should bow to the governors’ verdict in emergencies like the one the nation is now facing.
As Judge Samuel Alito, one of the dissidents in this case, explained in a speech to the Federalist Society last month, the pandemic has given the country a “constitutional stress test. He expressed concern that in the current circumstances “religious freedom is rapidly becoming a disapproved right.
The judiciary stated that he “does not reduce the severity of the threat to public health posed by the virus” or even “says anything” about whether the suspension measures are “good public order” – although the resurgence of the virus once they are lifted undermines the arguments for their effectiveness. He pointed out, however, that “the pandemic has led to previously unimaginable restrictions on individual freedom” and that this has been “done by executive order rather than legislation”. The unchecked growth of the administrative state and the rule of unaccountable “experts” preceded the appearance of the coronavirus by a long time. But what the Americans have experienced in 2020 is a sweeping away of legal norms that cannot be managed even in the midst of a crisis.
As Alito said, it should not have been a “hard decision” at Calvary Chapel to treat the right to religious freedom as at least as important as the right of a casino to operate. If you look in the Constitution, he added: “You will see the First Amendment’s free exercise of religion clause, which protects religious freedom, you will not find a craps clause, nor a blackjack clause, nor a slot machine clause”.
What has changed since July?
The answer is the tragic death of Judge Ruth Bader Ginsburg and her swift replacement by President Donald Trump and a Republican Senate with Judge Amy Coney Barrett. Though Roberts performed his now-familiar role of voting with the Liberals to pre-empt media criticism of the court, the three people appointed by Trump – Georsuch, Brett Kavanaugh and Barrett – joined forces with Alito and Clarence Thomas to create a majority that would 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 that this new majority considered unconstitutional. In comments broadcast 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 idea that ultra-Orthodox people are unique in their disregard for coronavirus regulations is a disappointment, it is true that this community considers their right to continue their religious way of life-which focuses on regular attendance at synagogues, religious education, and community gatherings to celebrate life-cycle events and holidays-to be nonnegotiable. While many Americans have put the perception of security in a pandemic above their freedom and treated religious observance as dispensable (for example, since March almost all non-Orthodox synagogues have been closed, with most resorting to worship 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 that the pandemic does not justify abandoning a lifestyle rooted in faith.
Doing what is necessary to save lives is a principle enshrined in both Jewish religious law and common sense. But the Ultra-Orthodox – skilfully represented in this case by the Becket Fund for Religious Freedom – think like their Catholic neighbors, who are also demanding the lifting of restrictions on their churches, that their right to live as they wish must be defended. They believe that being forced to refrain from communal prayers and gatherings, even when masks are worn and social distancing is maintained, is not only an inconvenience but also a threat to their identity and rights.
As in the case of Nevada, the question was not whether states can take action to save lives in a health emergency. Rather, the question was whether politicians, encouraged by the belief that fear of the pandemic gives them unlimited power, can exercise authority in a way that discriminates against religious groups. This has happened across the country as places of worship – which are considered essential by believers but not secular ones – have been closed as a large number of non-religious businesses and institutions have been allowed to remain open.
Power-hungry politicians like Cuomo apparently erased the constitution and used the pandemic to justify otherwise unjustifiable attacks on the right to freedom of religion. But as Gorsuch wrote: “Although the pandemic poses many serious challenges, there is no world where the constitution tolerates color-coded executive decrees that reopen liquor stores and bicycle stores but close churches, synagogues and mosques.
The court’s ruling will not stop all government action to deal with the emergency. But it does require politicians to prove that what they are doing is necessary-which Cuomo has not even attempted-and that they are not downgrading religious freedom to a secondary claim.
The challenge to Cuomo should be seen as a milestone in constitutional law that has stopped the government’s drift from the First Amendment.
Jonathan S. Tobin is editor-in-chief of JNS.org, a senior staffer of The Federalist and a columnist for The New York Post. Follow him on Twitter at @jonathans_tobin.
The views expressed in this article are those of the author.