Politics For Thanksgiving, the Supreme Court upholds religious liberty

19:45  28 november  2020
19:45  28 november  2020 Source:   thehill.com

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We should welcome a Supreme Court decision issued Wednesday night that is an important victory for religious liberty . The court overturned New York's strict The powerful desire for religious freedom goes back to ancient times. We celebrated it on Thanksgiving when we marked 400 years since the

Just last term, the Supreme Court issued a pair of decisions that cast serious doubt on its commitment to religious liberty for all. In Trump v. Hawaii , a deeply divided court upheld the president’s ban, which imposed strict, indefinite entry restrictions on individuals from certain Muslim-majority countries.

What a difference a one-justice swing in the Supreme Court makes. Late Wednesday, the high court, in a 5-4 ruling, granted two religious organizations an injunction, relieving them from the suffocating restrictions that New York's Democratic governor, Andrew Cuomo, had imposed on community worship.

a view of the inside of a building: For Thanksgiving, the Supreme Court upholds religious liberty © Getty Images For Thanksgiving, the Supreme Court upholds religious liberty

Back in June, as I detailed at the time, the justices split 5-4 in favor of upholding restrictions that California and Illinois had similarly rationalized as necessary to deal with COVID-19. What's different now?

Well, a few things. Five months later, now fully eight months into the coronavirus pandemic, the nation has better information about the disease. We have better identified and protected vulnerable segments of the population, and we've become more adept at treating COVID-19. Even amid the much-feared second wave, moreover, the justices could not help but notice that religious organizations - the two at issue in the New York case are the Catholic Diocese of Brooklyn and the Agudath Israel of America Jewish community - had built up strong records of adherence to anti-COVID protocols.

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The Supreme Court 's rejection of New York's pandemic limits on religious services exposed personal fissures among the nine justices and offered Their writings, particularly Gorsuch's, drew battlelines reminiscent of an Alito speech earlier this month asserting that religious liberty was under assault.

A nine-judge Constitution Bench of the Supreme Court on Monday upheld the decision of the Sabarimala Review Bench to refer to a larger Bench questions on the ambit and scope of religious freedom practised by multiple faiths across the country.

That said, it is impossible to ignore the reality that the court's internal dynamic has changed. Since the June decision, the court's progressive icon, Justice Ruth Bader Ginsburg, has passed away, and the highly-regarded conservative legal academic and jurist, Judge Amy Coney Barrett, has filled the vacancy. The trajectory is shifting away from deference to autocratic executive power and toward the Constitution's protections of core liberties - the separation of powers and the Bill of Rights.

In Wednesday's ruling, Roman Catholic Diocese of Brooklyn v. Cuomo, even Chief Justice John Roberts, who once again sided with the court's liberal bloc (though this time, in dissent), conceded that Gov. Cuomo's limitations on worship "do seem unduly restrictive." Based on his assessments of the severity of COVID-19 outbreaks, Cuomo classifies various state areas as red, orange or yellow zones. In the red zones, of greatest outbreak concern, no more than 10 people can attend a religious service, even though some of the churches seat over 1,000, and all of them at least a few hundred. In orange zones, attendance is capped at 25.

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“ The Supreme Court ’s decision will unfortunately undermine New York’s efforts to curb the COVID-19 Survivor Returns Home For Thanksgiving After Spending 7 Months At Hospital, Rehab Facility. The court ’s action was a victory for the Roman Catholic Church and Orthodox Jewish synagogues

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By contrast, businesses that the governor deems "essential" have no limitations on the size of meetings or other activity. As noted in the court majority's unsigned per curiam opinion (joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, as well as Justice Barrett), the governor denominates as "essential" such businesses as "acupuncture facilities, campgrounds, garages," and many businesses "whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities."

In orange zones, the court found that "the disparate treatment is even more striking." Though religious services are limited to 25 persons, even businesses Cuomo deems "nonessential" are free to "decide for themselves how many persons to admit."

The majority concluded that the restrictions are not "neutral" or of "general applicability." This finding is key in the court's religious-liberty jurisprudence. Restrictions that apply to everyone and do not target religion but incidentally affect religious observance (e.g., a general ban on peyote use that happens to burden the rites of some religious groups) are presumptively valid. By contrast, restrictions that single out religion - i.e., that are not neutral or generally applicable - are subject to the "strict scrutiny" analysis that the court applies to burdens on fundamental freedoms. That means the state, to justify its restrictions, must show that they are narrowly tailored to serve a compelling governmental interest.

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The U.S. Supreme Court voted 5-4 to side with New York places of worship against pandemic The court decision calls the measures "very severe restrictions on attendance at religious services in Just before midnight on the night before Thanksgiving , the Supreme Court blocked New York Gov.

The US Supreme Court has barred New York from imposing coronavirus restrictions on houses of worship in a ruling likely to be heralded by conservatives as a victory for religious The court had previously swung the opposite way, upholding similar restrictions on services in California and Nevada.

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Here, there is no gainsaying that the state has a compelling interest in stemming the spread of a potentially deadly infectious disease. Yet, the court observed that "it is hard to see how the challenged regulations can be regarded as narrowly tailored."

On that score, it is important to note the posture of the case. This was not a final ruling on the merits of the dispute. Rather, after a federal district court in Brooklyn (the Eastern District of New York) denied the religious organizations' request for a preliminary injunction against the state, they appealed to the Second Circuit federal appellate court. Like the district judge, the Second Circuit declined to enjoin the state government from imposing its restrictions while the appeal was pending; it did, however, agree to expedite the appeal so that it would be heard on Dec. 18.

While this is a rapid schedule for litigation, it portended weeks more of burdens on religious observance because of the severe restrictions. Therefore, the organizations sought an injunction to prevent the governor from enforcing the restrictions while their appeal to the Second Circuit is pending and - if that court rules against them - while any subsequent appeal to the Supreme Court may be pending.

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The limited issue before the high court, then, was whether to issue this temporary injunction. That called for the court to assess whether the religious organizations a) are, in the end, likely to succeed on the merits; b) would endure irreparable harm; and c) were seeking a remedy harmful to the public interest.

The majority had little trouble concluding that the organizations are likely to win their lawsuit. The restrictions are draconian, and they appear capricious in comparison to the solicitude the governor shows to activities he subjectively considers essential.

In addition, the organizations demonstrated irreparable harm. The restrictions are so stifling that many faithful observers would be shut out of community worship - and here, the court significantly acknowledged that "remote viewing [on television] is not the same as personal attendance," further noting that, for example, "Catholics who watch a Mass at home cannot receive communion."

Finally, the court concluded there was no indication that an injunction would harm the public interest. The state is apparently unable to show that church attendance has spread COVID-19 - certainly not in comparison to the many business activities and social/political demonstrations the state has indulged. It is easy to conjure less restrictive alternatives that would achieve the state's interest in combating spread of the disease. After all, many American states and cities are employing such alternatives.

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The court was not unmindful of the need to show appropriate deference to the judgment of elected officials, who are responsible for public health and accountable to the people affected by the regulations. In this instance, however, the court is not being asked to either defer or substitute its judgment on an ordinary policy matter. Here, "the very heart of the First Amendment's guarantee of religious liberty" is at stake. As the majority concluded, "Even in a pandemic, the Constitution cannot be put away and forgotten."

And that makes all the difference. As the court's liberals recognize only too well when a case involves some "right" they've managed to derive from "penumbras" mystically drifting from the Constitution's "emanations," it should not be our burden to defend our entitlement to core liberties. It should be the government's burden to prove that they must be denied, and courts should eye such claims with skepticism.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is "Ball of Collusion." Follow him on Twitter @AndrewCMcCarthy.

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