Wall Street Journal Editorial, 11/27/2020
Wow. That word rarely applies to Supreme Court opinions. But it does in our view to the Court’s order on Thanksgiving eve enjoining New York’s Covid-19 order restricting attendance at religious services. The Court is back as a sentinel protecting the free exercise of religion, even in a health emergency.
The Court’s order is a temporary injunction pending review on the merits by lower courts and perhaps eventually the Justices. But the rhetorical firepower unleashed in six separate opinions shows that convictions run hot at the Court on this subject, as well they should given the stakes for American liberty that has itself been enjoined by politicians in the pandemic.
In an unsigned 5-4 per curiam decision, the Court blocked as discriminatory Gov. Andrew Cuomo’s arbitrary limits of 10 or 25 people in houses of worship in certain Covid hot spots. The petitions came from the Catholic Diocese of Brooklyn and Agudath Israel of America, which represents Orthodox Jews (Diocese of Brooklyn v. Cuomo).
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten,” the Court writes. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The Court explains that New York’s order treats houses of worship more harshly than what Mr. Cuomo considers “essential” businesses. Those include liquor stores, bike shops, acupuncturists, lawyers, accountants, and more.
As Justice Neil Gorsuch puts it in a corker of a concurrence: “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?” This disparate treatment discriminates against religion.
The four dissenters, including Chief Justice John Roberts, argue that an injunction isn’t necessary because Mr. Cuomo has already rescinded his orders. But the majority explains that Mr. Cuomo could reinstate or change them at any time, as he often has, and the plaintiffs would suffer immediate injury as they wait for courts to grant relief. Anyone who has watched Mr. Cuomo operate in the pandemic knows he relishes his role as master of the universe. On bullying brand as always, he dismissed the Court’s order as “philosophy and politics.”
The order shows that new Justice Amy Coney Barrett’s vote was decisive. The Court had split 4-4 on previous religious appeals in the pandemic, and Justice Gorsuch unloads on the Chief Justice’s May opinion in a California case (South Bay United Pentecostal Church v. Newsom). The Chief had cited a precedent from a century ago to argue for deferring to the authority and expertise of local officials in an emergency.
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Justice Gorsuch writes. “Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause. Today, a majority of the Court makes this plain.”
The Chief replies that Justice Gorsuch makes too much of a single sentence in his South Bay opinion. But the sharp exchange highlights the differences on the Court between the Chief’s political pragmatism and the majority’s adherence to first constitutional principles. The opinions also make clear the frustration of the conservative Justices with the Chief’s restraint in protecting core constitutional rights.
While the 5-4 order is welcome, it is disappointing that the ruling wasn’t 9-0. New York’s restrictions on religious worship are so overbroad, and so arbitrary, that their violation of the Free Exercise Clause should be an easy call. Americans have tolerated extraordinary restraints on their freedom in the pandemic, but it’s increasingly clear as we learn more about the virus that too many Governors have needlessly infringed on basic rights.
And too many judges have acquiesced. Americans should welcome the Supreme Court back at the ramparts as a defender of liberty.
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