ALEXANDER: The Supreme Court Has Protected Religious Liberty, For Now

The landmark Supreme Court decision last week you might have heard about involves the Catholic Diocese of Brooklyn and the Agudath Israel of America, an Orthodox Jewish group, and their opposition to restrictions limiting religious services to ten people in some areas and 25 people in others.  Both groups essentially argued that the new Covid-19 regulations imposed by New York Governor, Andrew Cuomo, target houses of worship in a much more burdensome and restrictive manner than other non-religious, commercial facilities.

“…there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

– Justice Neil Gorsuch

At its core, this decision by the U.S. Supreme Court powerfully underscores the principle that a public health emergency cannot be used as a valid reason to target religious activities with draconian restrictions while allowing secular businesses and commercial entities that are deemed “essential” (and, apparently, even some favored “non-essential” businesses) to proceed in their typical fashion.   Rather, the Court makes clear that what is deemed “safe” for liquor stores, bike shops and massage parlors must also be deemed safe for churches and synagogues.

In a succinct and penetrating concurrence opinion, Justice Gorsuch reasoned his way through the issue: “People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops.  No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of ‘essential’ businesses and perhaps more besides.”

Hence, Justice Gorsuch continues, “the only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.  Indeed, 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.”

It should be highly hopeful and heartening for believers to see a decision like this that resoundingly rejects an action by government that would otherwise undermine and weaken the 1st Amendment’s guarantee of religious liberty.  Even in a health emergency, core constitutional rights may not be enjoined by politicians, particularly when they, as here, are imposed in an overly broad, arbitrary, and discriminatory fashion.


However, there is a broader question presented here:  How far will this go? Where does government overreach in matters of religious liberty and freedom of conscience end? I note that the largest LGBT organization in America has already demanded that Joe Biden, if he becomes president, remove accreditation of Christian schools that teach and adhere to Biblical sexuality.

My point is that religious liberty has been under attack in this country for decades.  In this case, by a mere 5-4 decision—one vote—the Supreme Court has protected religious freedom.  However, a 5-4 decision the other way would essentially allow “public health” officials to be given preference—greater authority—over sacred, fundamental constitutional rights that have protected Americans for 244 years.  That’s worrisome and concerning.

This decision is very encouraging but we still have a battle in front of us and we will courageously rise to meet it.



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