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For Thanksgiving, the Supreme Court upholds religious liberty

For Thanksgiving, the Supreme Court upholds religious liberty
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What a difference a one-justice swing in the Supreme Court makes. Late Wednesday, the high court, in a 5-4 ruling, granted two religious organizations an injunction, relieving them from the suffocating restrictions that New York’s Democratic governor, Andrew CuomoAndrew CuomoSix NY county executives call on Cuomo to update state's mask mandate in line with CDC guidance CDC's about-face on masks appears politically motivated to help a struggling Biden Cuomo accuser blasts governor's 'Trumpian gaslighting' over harassment allegations MORE, had imposed on community worship.

Back in June, as I detailed at the time, the justices split 5-4 in favor of upholding restrictions that California and Illinois had similarly rationalized as necessary to deal with COVID-19. What’s different now? 

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Well, a few things. Five months later, now fully eight months into the coronavirus pandemic, the nation has better information about the disease. We have better identified and protected vulnerable segments of the population, and we’ve become more adept at treating COVID-19. Even amid the much-feared second wave, moreover, the justices could not help but notice that religious organizations — the two at issue in the New York case are the Catholic Diocese of Brooklyn and the Agudath Israel of America Jewish community — had built up strong records of adherence to anti-COVID protocols.

That said, it is impossible to ignore the reality that the court’s internal dynamic has changed. Since the June decision, the court’s progressive icon, Justice Ruth Bader GinsburgRuth Bader GinsburgJudge Judy on expanding Supreme Court: 'It's a dumb idea' Court watchers buzz about Breyer's possible retirement Five hot-button issues Biden didn't mention in his address to Congress MORE, has passed away, and the highly-regarded conservative legal academic and jurist, Judge Amy Coney BarrettAmy Coney BarrettJudge Judy on expanding Supreme Court: 'It's a dumb idea' Court watchers buzz about Breyer's possible retirement Five hot-button issues Biden didn't mention in his address to Congress MORE, has filled the vacancy. 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.

In Wednesday’s ruling, Roman Catholic Diocese of Brooklyn v. Cuomo, even Chief Justice John Roberts, who once again sided with the court’s liberal bloc (though this time, in dissent), conceded that Gov. Cuomo’s limitations on worship “do seem unduly restrictive.” Based on his assessments of the severity of COVID-19 outbreaks, Cuomo classifies various state areas as red, orange or yellow zones. In the red zones, of greatest outbreak concern, no more than 10 people can attend a religious service, even though some of the churches seat over 1,000, and all of them at least a few hundred. In orange zones, attendance is capped at 25.

By contrast, businesses that the governor deems “essential” have no limitations on the size of meetings or other activity. As noted in the court majority’s unsigned per curiam opinion (joined by Justices Clarence ThomasClarence ThomasSupreme Court gets it wrong again, denying justice to those in uniform Overnight Defense: Top general drops objection to major change in prosecuting military sexual assault | Supreme Court declines to take up case from former West Point cadet | Pentagon says 'small' attacks not affecting Afghanistan withdrawal Supreme Court declines to hear case over former West Point cadet's rape allegations MORE, Samuel AlitoSamuel AlitoConservative justices split in ruling for immigrant fighting deportation Stand and deliver — President Biden's maiden address to Congress Supreme Court seems wary of California donor disclosure law MORE, Neil GorsuchNeil GorsuchConservative justices split in ruling for immigrant fighting deportation Top GOP super PAC endorses Murkowski amid primary threat Trump-era grievances could get second life at Supreme Court MORE and Brett KavanaughBrett Michael Kavanaugh Klobuchar offers tribute to her father, who died Wednesday Conservative justices split in ruling for immigrant fighting deportation Supreme Court weighs whether to limit issuance of exemptions to biofuel blending requirements MORE, as well as Justice Barrett), the governor denominates as “essential” such businesses as “acupuncture facilities, campgrounds, garages,” and many businesses “whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.”

In orange zones, the court found that “the disparate treatment is even more striking.” Though religious services are limited to 25 persons, even businesses Cuomo deems “nonessential”  are free to “decide for themselves how many persons to admit.” 

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The majority concluded that the restrictions are not “neutral” or of “general applicability.” This finding is key in the court’s religious-liberty jurisprudence. Restrictions that apply to everyone and do not target religion but incidentally affect religious observance (e.g., a general ban on peyote use that happens to burden the rites of some religious groups) are presumptively valid. By contrast, restrictions that single out religion — i.e., that are not neutral or generally applicable — are subject to the “strict scrutiny” analysis that the court applies to burdens on fundamental freedoms. That means the state, to justify its restrictions, must show that they are narrowly tailored to serve a compelling governmental interest.

Here, there is no gainsaying that the state has a compelling interest in stemming the spread of a potentially deadly infectious disease. Yet, the court observed that “it is hard to see how the challenged regulations can be regarded as narrowly tailored.” 

On that score, it is important to note the posture of the case. This was not a final ruling on the merits of the dispute. Rather, after a federal district court in Brooklyn (the Eastern District of New York) denied the religious organizations’ request for a preliminary injunction against the state, they appealed to the Second Circuit federal appellate court. Like the district judge, the Second Circuit declined to enjoin the state government from imposing its restrictions while the appeal was pending; it did, however, agree to expedite the appeal so that it would be heard on Dec. 18.

While this is a rapid schedule for litigation, it portended weeks more of burdens on religious observance because of the severe restrictions. Therefore, the organizations sought an injunction to prevent the governor from enforcing the restrictions while their appeal to the Second Circuit is pending and — if that court rules against them — while any subsequent appeal to the Supreme Court may be pending. 

The limited issue before the high court, then, was whether to issue this temporary injunction. That called for the court to assess whether the religious organizations a) are, in the end, likely to succeed on the merits; b) would endure irreparable harm; and c) were seeking a remedy harmful to the public interest. 

The majority had little trouble concluding that the organizations are likely to win their lawsuit. The restrictions are draconian, and they appear capricious in comparison to the solicitude the governor shows to activities he subjectively considers essential.

In addition, the organizations demonstrated irreparable harm. The restrictions are so stifling that many faithful observers would be shut out of community worship — and here, the court significantly acknowledged that “remote viewing [on television] is not the same as personal attendance,” further noting that, for example, “Catholics who watch a Mass at home cannot receive communion.”

Finally, the court concluded there was no indication that an injunction would harm the public interest. The state is apparently unable to show that church attendance has spread COVID-19 — certainly not in comparison to the many business activities and social/political demonstrations the state has indulged. It is easy to conjure less restrictive alternatives that would achieve the state’s interest in combating spread of the disease. After all, many American states and cities are employing such alternatives.

The court was not unmindful of the need to show appropriate deference to the judgment of elected officials, who are responsible for public health and accountable to the people affected by the regulations. In this instance, however, the court is not being asked to either defer or substitute its judgment on an ordinary policy matter. Here, “the very heart of the First Amendment’s guarantee of religious liberty” is at stake. As the majority concluded, “Even in a pandemic, the Constitution cannot be put away and forgotten.” 

And that makes all the difference. As the court’s liberals recognize only too well when a case involves some “right” they’ve managed to derive from “penumbras” mystically drifting from the Constitution’s “emanations,” it should not be our burden to defend our entitlement to core liberties. It should be the government’s burden to prove that they must be denied, and courts should eye such claims with skepticism.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.