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At the Supreme Court, a Red Line for Religious Freedom

A majority of justices set limits on state lockdown power last week, in what would seem a watershed for the new court.

In a helter-skelter year for Americans’ conception of themselves, their freedoms and the very integrity of the democratic process itself, the Supreme Court set limits last week on the state’s power to curtail religious gatherings.

Concurring with four other justices — Amy Coney Barrett, Sam Alito, Clarence Thomas and Brett Kavanaugh — Justice Neil Gorsuch wrote: “Government is not free to disregard the First Amendment in times of crisis. … New York’s governor has asserted the power to assign different color codes to different parts of the State and govern each by executive decree.” 

The Court found in favor of religious gatherings in Roman Catholic Diocese of Brooklyn, New York V. Andrew M. Cuomo.

“Nor is the problem an isolated one,” said Gorsuch. “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.” 

Noted Gorsuch: “The governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all ‘essential’ while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”

The ruling quintet is considered (with the recent addition of Justice Barrett) the Court’s new, center-to-center right wing. It is said to be poised to impose an abortion regime out of TheHaidmaiden’s Tale— as well as strike down the Affordable Care Act and the 2020 election results. None of that has, as yet, come to pass, but what has transpired in recent years is a remarkable reversal in what constitutes the live-and-let-live wing of U.S. politics. The Court’s divisions are emblematic of a broader shift in American life. 

The Moral Majority is now a crested political force, but as recently as the past two decades, the “religious right” was poised to succeed in its quest to keep marriage heterosexual nationally, and even ban abortion by Constitutional amendment (if not a reinterpration of the existing amendments). The shift in cultural attitudes — one could even say, the Californication of America — has been a flash flood. Gay marriage is now the law of the land, and talk of a Human Life Amendment is nowhere to be heard in Congress, to say nothing of the cannabis dispensaries opening up from the Pacific to the Atlantic.    

But if cultural liberalism has triumphed — as civilizations go, very potentially permanently — some of its proponents would seem to have learned tricks from the old wars: about leveraging the power of the state. It is plain that the rights of the genuinely religious and the authentically socially conservative have been thrown into debate in recent years. Roman Catholic Diocese of Brooklyn v. Cuomo is the latest episode, but America witnessed teasers of this kind of clash in the Obama years. 

Whether it be the right of conservative firms to decline to provide birth control to employees or anonymous Indiana pizzerias to decline to cater gay weddings, handling a population with a dissenting understanding of sin is as prickly a matter as any in American politics. Often, the various sides have found themselves making opposite-style arguments than they might have made even twenty years ago.  

The flip is apparently obvious overseas. In the past, it was standard Republican fare to hector a Democratic president for his private life, drawing snickers in Paris. Now, it is French elites who warn against potential excesses of #MeToo; more recently, it is the liberal country’s young president and his team which have inveighed against American-exported multiculturalism and iconoclasm, seeing purtian excess. 

In 2020, Élysée has rejected the destruction of national monuments and “Islamic separatist” temptations alike. President Macron alleges his republic’s very founding principles — liberté, égalité, fraternité (liberty, equality, fraternity) — are at stake. And he feels the same about France’s ruling mantra, laïcite, or the principle of secularism.

Speaking for himself, Gorsuch feels the stakes are as elevated in America.

“Saying so now,” Gorsuch writes. “Will dispel, as well, misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.” From the beginning of the COVID-19 crisis, the lockdown measures favored (erratically in rhetoric) by President Trump and (with diversity in intensity) by state governors have come up against the reality of dubious constitutionality.  

But whether it be President Lincoln’s suspension of habeas corpus rights — or more disastrously, FDR’s internment of Japanese Americans (upheld as legal to this very day) — or the establishment of an unprecedented domestic surveillance dragnet and the affording of increasingly arbitrary military powers to the president since September 11, 2001 — the United States has shown itself to be nothing, if not flexible, in giving its leaders flexibility in times of crisis, however unproven their judgement.  

But it’s always pulled back. 

After a Supreme Court smackdown of his own, Lincoln effectively softened his carceral policy. The United States gave reparations to interned Japanese-Americans. And most understand that the reckoning over the war on terror is still underway. Of course, as the present convulsions over our shared, national history reveal, that’s just not good enough for many Americans.  

What remains in constant question is when and where the state can act in crisis. Put bluntly, whose rights can it restrict, while others’ are relatively freed up? 

Justice Stephen Breyer, along with Sonia Sotomayor and Elena Kagan, dissented from the ruling. Breyer’s writing, in contrast to the majority, is heavy on the grim realities of the pandemic. “COVID–19 has infected more than 12 million Americans and caused more than 250,000 deaths nationwide. At least 26,000 of those deaths have occurred in the State of New York, with 16,000 in New York City alone,” Breyer writes. “And the number of COVID–19 cases is many times the number of deaths. The nation is now experiencing a second surge of infections.”

But as the United States settles in for a “dark winter,” as the president-elect puts it, a majority of the Supreme Court has shown its preference for greater flexibility for residents of the United States. This protection includes, should one want to, the right to pray in church in a crisis.

about the author

Curt Mills is Senior Reporter at TAC covering national security, the 2020 campaign and the Trump presidency. Previously, he reported for The National Interest, Washington Examiner, U.S. News & World Report and the Spectator. Mills was a 2018-2019 Robert Novak Journalism Fellow and is a native and resident of Washington, D.C.

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