Supreme Court Sides With Religious Services

Robert Brooks Contributor
Supreme Court Sides With Religious Services
Read Time: approx. 3:21

This is the top story from our daily newsletter published on November 30, 2020. To have this and more delivered directly to your inbox scroll down and enter your email or click here to sign up.


Top Story from the Wall Street Journal news team: Last week, “in a 5-4 ruling, the Supreme Court blocked New York from implementing an order from Gov. Andrew Cuomo that introduced restrictions on houses of worship in areas most severely affected by the coronavirus: limiting capacity by 25% or 10 people in red zones and 33% or 25 in orange zones. New York classifies places where coronavirus infections are of increasing severity as yellow, orange, or red.” Two houses of worship “alleged that the limits violated their First Amendment rights of religious exercise. The court found it troubling that businesses that the state considered essential weren’t subject to the same occupancy limits. Those included “things such as acupuncture facilities, campgrounds, [and] garages.” Here is what both sides said about the Supreme Court’s unsigned majority opinion:

On the RightIn an opinion piece for The Hill, former federal prosecutor Andrew C. McCarthy, a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor writes in a celebratory manner: “What a difference a one-justice swing in the Supreme Court makes.” In June, McCarthy points out “the justices split 5-4 in favor of upholding [house of worship] restrictions that California and Illinois had similarly rationalized as necessary to deal with COVID-19.” That ruling came before “the court’s progressive icon, Justice Ruth Bader Ginsburg, had passed away.” Since then “the highly-regarded conservative legal academic and jurist, Judge Amy Coney Barrett, has filled the vacancy.” With that one-seat switch, McCarthy says “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.” Zooming out, McCarthy cites and says this ruling is extremely important because “the very heart of the First Amendment’s guarantee of religious liberty” is at stake. To summarize, “as the majority concluded, ‘even in a pandemic, the Constitution cannot be put away and forgotten.'”

On the LeftIn an opinion piece for USA Today, Laurence Tribe, a Harvard Law School professor, and Michael Dorf, a Constitutional Law professor at Cornell, say dejectedly: “To this Supreme Court, religious freedom trumps public health — even amid COVID-19 plague.” Tribe and Dorf begin by noting that “balancing public health against the right to free exercise of religion poses a difficult challenge amid the COVID-19 pandemic.” This is why, they say, that “when [similar] cases from California and Nevada reached the Supreme Court earlier this year, the justices deferred to the judgment of their governors, who are, after all, accountable to the people.” The two authors also point out that these rulings came when Justice Ruth Bader Ginsburg was still alive and serving. To Tribe and Dorf, the latest ruling “was especially notable because it was unnecessary. As Chief Justice John Roberts explained in his dissent, by the time the court ruled, the New York houses of worship were no longer ‘subject to any fixed numerical restrictions.'” More broadly, however, the authors say that although “religious gatherings face greater restrictions than less risky activities like shopping, they are actually treated more favorably than comparably risky secular activities, such as public lectures, concerts, and theatrical performances.” Therefore they say: “For the Supreme Court’s new and extremely conservative majority, it seems, failure to sufficiently discriminate in favor of religion counts as discrimination against religion.” In conclusion, the authors write: “America may be back, as Joe Biden says, but at the Supreme Court America is increasingly unrecognizable.”

Flag This: “The ruling could influence lawsuits in other states seeking to overturn similar rules on houses of worship,” Stephanie Yang, Josh Mitchell and Alicia A. Caldwell report for the Wall Street Journal. “Up to 20 cases involving houses of worship in states including Nevada, New Jersey, California and Oregon could be affected by the Supreme Court decision.”