Supreme Court’s dissent on religious liberty is why the court needs Justice ACB

Nov 29, 20205 min read

Supreme Court’s dissent on religious liberty is why the court needs Justice ACB | The Post Millennial

The Supreme Court released a pre-Thanksgiving, midnight-hour ruling that temporarily blocked New York from enforcing COVID-19 restrictions on churches and synagogues. Two religious groups—Orthodox Jewish synagogues and the Roman Catholic Dioceses of Brooklyn—brought nearly identical lawsuits against New York's Governor Andrew Cuomo for mandating COVID-19 restrictions the groups claimed violated their First Amendment right to worship.

The religious organizations asked for injunctive relief and to be temporarily allowed to continue their religious practices. For Orthodox Jews, this is particularly important, as several holidays are around the corner. While the majority ruling bolsters the authority of the First Amendment—and any lover of liberty should be glad for it—the minority's opinions, particularly Chief Justice John Roberts and Justice Sonia Sotomayor, are a peek into what authoritarian political leaders seem to have been thinking all along, when imposing arbitrary guidelines on churches whilst allowing non-essential businesses to remain open.

In his dissent, Chief Justice Roberts said he didn't think there was a need to grant the relief because things improved after they received this urgent request. "After the Diocese and Agudath Israel filed their applications, the Governor revised the designations of the affected areas. None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions. At these locations, the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief they currently seek."

This is just silly reasoning, the kind that is employed even at schoolyard playgrounds. If a child stops bullying another just as the less fortunate one calls for the teacher, should the bully still not be reprimanded? The fact that Governor Cuomo revised his arbitrary and authoritarian regulations after the lawsuit does not negate the need for the Court to still view the case as things were when the groups asked for relief.

At least Justice Sotomayor does not pretend the group's case is moot and she takes on the heart of the issue which is whether or not placing restrictions on worship attendance is a violation of a person's First Amendment right to free exercise. However, instead of playing the role of Constitutional advocate, she immediately sides with public health officials and political leaders. "Justices of this Court play a deadly game in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily," Sotomayor wrote.

She too views this case through the lens of a faux public health official saying that "granting applications such as the one filed by the Roman Catholic Diocese of Brooklyn (Diocese) will only exacerbate the Nation's suffering." Unfortunately, whether or not the country is suffering or if more people will suffer because religious groups are allowed to worship is irrelevant here: The Constitutional nature of the matter—equality under the law—is what is at stake.

Towards the end of her dissent, Sotomayor finally ventures into the territory of whether or not Cuomo treated businesses more favorably than churches, which is what the majority found and what they stated was unequivocally unconstitutional. However, she ignores this issue and says since the Constitution doesn't explicitly say that could be a problem, it's no problem for political leaders to mandate churches and businesses shutter their doors arbitrarily and differently.

"Free religious exercise is one of our most treasured and jealously guarded constitutional rights. States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today. The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives. Because New York's COVID– 19 restrictions do just that, I respectfully dissent." There's no way the Constitution could make allowance for every foreseeable public health crisis for the next millennia, but the Founding Fathers were familiar with such a thing which is why the First Amendment is so darn clear: The right to free exercise shall not be prohibited.

In a 5-4 decision, with Amy Coney Barrett siding with the majority, the Court granted the relief and found that the Governor's "rules can be viewed as targeting the 'ultra-Orthodox [Jewish] community.'" In a fiery opinion, Justice Neil Gorsuch explained why Cuomo's guidelines violated the First Amendment and said what nearly every sane person has been thinking for months.

"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 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?"

The fact that Sotomayor, Roberts, Breyer, and Kagan, so easily and passionately took the side of public health officials and political leaders who have been trampling on the right to worship since March, with no regard for how they have treated businesses so differently, is disconcerting and exactly why conservatives wanted yet another originalist, like Amy Coney Barrett, on the High Court. As Gorsuch said, "Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical."