On the Wednesday night before Thanksgiving the U.S. Supreme Court issued a ruling which is a very positive signal for the rights of people of faith to freely exercise that faith. New York Governor Andrew Cuomo had issued a “Cluster Initiative” which used color coded restrictions on large gatherings in certain parts of New York City. These restrictions were challenged in court by the Catholic Diocese of Brooklyn and Jewish synagogues as an invalid restriction on citizens’ rights under the Free Exercise Clause of the First Amendment to the Constitution.
The Supreme Court issued an injunction against applying Governor Cuomo’s order to gatherings at houses of worship. Justice Neil Gorsuch wrote a scathing concurring opinion in which he said “there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutters churches, synagogues and mosques”.
Much of the press focused on the fact that this was the first case in which Justice Amy Coney Barrett’s vote was necessary to achieve a majority because Chief Justice Roberts joined with the dissenters as he believed the ruling was premature. His decision was unsurprising as he had voted with the liberals on the Court against acting on earlier COVID restrictions. It was also in keeping with his preference to avoid judicial intervention in matters which he doesn’t consider to be procedurally ripe. I have great respect for Justice Roberts but disagree with his decision in this case and am glad the majority saw fit to issue the injunction.
When President Trump nominated Justice Kavanaugh and Justice Barrett, liberals and their news media allies howled that these new justices’ presence on the Court would provide the votes to strike down the Affordable Care Act and reverse Roe v. Wade. I never bought that line and it appears from oral arguments in the Affordable Care Act case presently before the Court that there is not a majority to do the former.
I did believe that these two new justices, along with other Republican nominated justices, would take a much broader view of the Free Exercise Clause and a much narrower view of the statutory authorization for government regulation. This new case confirms that the Court has indeed adopted an expanded application of the Free Exercise Clause.
Why is this so timely and so important? America’s cultural elites have adopted a hostility to faith, people of faith and people acting out their faith. They used to be willing to let people do as they pleased in their houses of worship while jumping at the chance to criticize and restrict them if they actually attempted to exercise their beliefs outside of worship. Governor Cuomo’s order, and those of many other Democrat governors and mayors, demonstrate that the elites now want to regulate what happens inside houses of worship.
The First Amendment, like the other nine amendments in the Bill of Rights, was passed by the First Congress in 1789 and the states ratified them in 1791. Passage of these amendments was demanded by several of the states in the ratification conventions on the original Constitution. These amendments comprise fundamental law, conferring primary rights on the people of this nation.
As to religion the First Amendment states “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” It was applied to state and local governments in the 20th century by courts invoking the Fourteenth Amendment.
The first clause, known as the Establishment Clause, was intended as a prohibition on a government established church as the Church of England was at the time of the Revolution and is today. That clause has been expanded judicially to prohibit any government action favoring a particular religious view.
Until recently, the Free Exercise Clause has been rarely invoked. But actions by state
and local governments in more recent times to control people of faith in their efforts to live out their faith have made the Free Exercise Clause a new judicial battleground, and this new majority on the Supreme Court has arrived just in time to deliver last week’s important opinion. I predict more decisions in the future applying the clause to inappropriate government action.
Note the use of the word “exercise.” It denotes action and not just belief. That First Congress was acutely aware of the limitations on worship and action by the British government on behalf of the Church of England. Indeed, many of their ancestors fled to America to escape government dictates on religion. They also knew the ugly history of the Puritan Protectorate government in 17th century England which tried to limit all sorts of conduct – even celebrating Christmas. Congress and the ratifying states made it clear in the Free Exercise Clause that government in this country has no such power.
As I have seen in the Congresses I have served in over the last several years, many members have lost that understanding. Indeed, they have attempted to repeal the Religious Freedom Restoration Act which passed with near unanimity in the 1990s. They see religious rights as secondary, not primary. Governor Cuomo and his Democrat colleagues in state houses and mayors’ offices around the U.S. do too.
Now, the new majority on the Supreme Court has stepped up to stop the slide away from religious freedom. It’s about time, and I trust they will continue to do so.