Our Constitution Doesn’t Take a Holiday 

Posted by on Dec 7th, 2020 and filed under Legal, Politics, Supreme Court. You can follow any responses to this entry through the RSS 2.0. You can skip to the end and leave a response. Pinging is currently not allowed.

by Horace Cooper
Americans enjoyed their Thanksgiving time with family last week and simultaneously discovered a special treat.   In a per curiam opinion the Supreme Court sided with the religiously faithful against unfair regulation by the state of New York.  
In Roman Catholic Diocese of Brooklyn, New York v. Cuomo the Supreme Court granted a restraining order which prevents New York Gov. Cuomo’s Executive Order 202.68 – a coronavirus directive that enforces so-called occupancy limits on religious services.
The Court’s ruling was a ringing endorsement for religious freedom and it almost didn’t happen.
The dispute started in October.  New York Gov. Cuomo, a Democrat, issued an order to take “short-term aggressive measures” where coronavirus “spikes” occurred as a way to contain the virus.  The order placed severe limits on church attendance regardless of size because of their “super-spreader potential.”
Meanwhile many other business and activities were unimpaired.
Churches and synagogues offered to engage in mitigation techniques similar to those of businesses like Wal-Mart and Home Depot and the state of New York refused their offer.
Thus, the churches and synagogues affected had no choice but to seek relief in Court.  Losing in the District court and in the Court of Appeals, a last-ditch appeal was made to the Supreme Court which agreed to hear the case.
The story gets interesting here.
Hours before the Supreme Court issued its ruling, the state of New York attempted an end run.  They abruptly announced that the churches and synagogues suing the state were no longer in “red” and “orange” zones.  The state of New York then argued the case was moot since the restrictions were no longer in place.  This clever sleight of hand (which had been tried by New York in other cases before) apparently was clever enough.
The Supreme Court issued its ruling anyway.  Five justices led by Clarence Thomas, the most senior Justice, agreed that the 1st amendment likely precludes New York’s mistreatment of places of worship.  The Chief Justice while willing to allow New York’s scheme to “moot the case” to succeed, admitted that the action also violated the Constitution.  Only 3 justices – all liberals – agreed that New York could use Covid19 as a pretext for undue regulations of the faithful.
The constitutionalists on the Court were undaunted.
The Court announced that “even in a pandemic, the Constitution cannot be put away and forgotten.”
As the Court explained: The applicants have made a strong showing that the challenged restrictions violate “the minimum requirement of neutrality.”  Though the Supreme Court has repeatedly explained that the Constitution does not allow people of faith to be treated adversely, New York assumed that there was some kind of coronavirus exception or alternatively that it could act as if one existed and then rescind the restriction if the Supreme Court took the case.  
However, the legal standard is that government action affecting people of faith must be “generally applicable or else must be “narrowly tailored” to satisfy a “compelling” state interest.
And in a concurring opinion Justice Gorsuch provided further a ringing endorsement of religious liberty.  He opens with: “Government is not free to disregard the First Amendment in times of crisis.” Gorsuch asks, “…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?” 
Predictably Gov. Cuomo and the left criticized the ruling.  They accused the court of rank partisanship and placing the public at risk.  “We know who heappointed to the court. We know their ideology,” Governor Cuomo said in the immediate aftermath of the ruling.
“The freedom to worship is one of our most cherished fundamental rights, but it does not include a license to harm others or endanger public health,” said Daniel Mach of the American Civil Liberties Union.
Fortunately, this shortsighted view didn’t hold sway over the Court.  
As Gorsuch concludes his concurrence: “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.”
Thankfully our Constitution didn’t take a holiday.
Horace Cooper is a legal commentator and a senior fellow with the National Center for Public Policy Research

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