A Clear Victory for Civil Liberties

Written for Bacon’s Rebellion by James C. Sherlock

In a speech to the Federalist Society earlier this month, Justice Samuel A. Alito Jr. said the pandemic

“has resulted in previously unimaginable restrictions on individual liberty. This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right.”

Last night, the Supreme Court court ruled 5-4 to bar New York Governor Andrew Cuomo from enforcing his “Cluster Initiative” against houses of worship. This ruling was on a suit brought by two of those, a Catholic Church and a synagogue.

Bloomberg News reported that the order was aimed at worship services at some synagogues and Roman Catholic churches in parts of Brooklyn and Queens.

In designated red zones, the state limited attendance in houses of worship to 25% of their capacity or 10 people, whichever is fewer. The majority said his limits violated the First Amendment’s protection of the free exercise of religion.

Justice Neil Gorsuch, in the concurring opinion, said Cuomo had treated religious activities less favorably than nonreligious ones.

Justice Gorsuch wrote:

“It is time — past time — to make plain that, while the pandemic poses many grave challenges, 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,” wrote Gorsuch.

“So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” he continued, according to a tweet from The Economist correspondent Steven Mazie. “Who knew public health would so perfectly align with secular convenience?”

The American Civil Liberties Union, which perhaps needs a name change, condemned the decision and warned it could “undermine New York’s efforts to curb the pandemic.”

That decision is now the governing precedent for federal courts nationwide.  Any suit brought in Virginia on identical grounds will likely ultimately prevail.

Now we await suits on the right guaranteed in Article 8 of the Virginia constitution:

The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth, and shall seek to ensure that an educational program of high quality is established and continually maintained.