Constitution Cannot Be Put Away, Even In A Pandemic

Close to midnight on November 25, the day before Thanksgiving, the U.S. Supreme Court halted New York’s strict attendance caps on houses of worship.

The 5-justice majority noted that “even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

Justice Gorsuch emphasized:

“Government is not free to disregard the First Amendment in times of crisis… Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles . . .

. . . In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. In far too many places, for far too long, our first freedom has fallen on deaf ears . . .

. . . Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical . . .

. . . we [judges] may not shelter in place when the Constitution is under attack. Things never go well when we do . . .

. . . 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.”

Justice Kavanaugh also elaborated:

“. . . . once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class… judicial deference in an emergency or crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.”

Even Chief Justice Roberts, who did not join the majority opinion over a procedural question, conceded that “Numerical capacity limits of 10 and 35 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause.”

“The Court’s decision to block New York’s harsh restrictions on houses of worship sends a strong warning to state governments throughout the nation,” explained Michael Johnson, policy analyst with The Family Foundation. “The courts will no longer shelter in place as our Constitution is attacked and our first freedom falls on deaf ears. They will ensure states at least meet ‘the minimum requirement of neutrality’ and avoid singling out houses of worship for ‘especially harsh treatment.’”

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