DANIEL VAUGHAN: Barrett era kicks off with defense of religious liberty

We’re getting our first look at the newly constituted Supreme Court, one with Justice Amy Coney Barrett on the bench. And if first impressions are any predictor of future cases, it seems the court is set to be more conservative and less prone to rely on the minute technicalities that Chief Justice John Roberts loves using.

In a recent case, Justice Barrett cast the deciding vote granting an injunction against Democratic New York Gov. Andrew Cuomo’s orders that tried to shut down or at best severely hamper attendance at churches, synagogues, and other houses of worship. The injunction means the churches and synagogues that are part of the lawsuit can peacefully meet while the litigation over the constitutionality of Cuomo’s orders continues.

The majority Per Curiam opinion said:

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But 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.

The left quickly jumped on the opinion, even giving Barrett the nickname, Amy Covid Barrett.” The implication was that the Supreme Court was voting to kill more people.

Justice Sonia Sotomayor even got in on the act in her dissent, saying the court’s decision would “only exacerbate the Nation’s suffering” with regard to COVID-19.

These statements are patently absurd and disproved by evidence on the record. Indeed, as the Per Curiam opinion notes, the churches and synagogues at issue “have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.” The court notes that this observation goes “without contradiction” from any party in the case.

The crux of the issue both in this case and in general is whether or not we deem constitutional rights essential or not. Justice Neil Gorsuch zeroed in on this issue in his concurrence, saying:

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.

Gorsuch quips earlier in his concurrence, while listing out places that New York’s governor deemed essential and non-essential, “Who knew public health would so perfectly align with secular convenience?”

Also notable in Gorsuch’s concurrence are the shots he felt free to take at Roberts’ judicial philosophy of keeping the court’s impact on anything light. Going through the spring cases regarding COVID-19, when the Supreme Court gave states broad deference in orders, Gorsuch noted:

Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.

Roberts spent most of his own dissent rebutting Gorsuch on this point. But even if Roberts hints that he agrees with these cases on the merits, Gorsuch and the Per Curiam opinion make it clear: states are not free to dismiss constitutional rights arbitrarily. The newly constituted Supreme Court is not shirking from a duty of defending the Constitution.

What’s also interesting here, as the new court begins to take shape, is that the liberal voting bloc is less cohesive. None of the liberals could bring Roberts or any conservative on board with their arguments. This circumstance was not an issue for Ruth Bader Ginsburg. She formed a consensus on the left.

This time, none of the liberal justices joined the Roberts opinion as a means of winning him over. The Roberts dissent stands alone.

The liberals also hold an uneasy bloc. The liberals all voted together on the Breyer opinion. But it was pretty clear in Justice Breyer’s dissent that even he was sympathetic to the Jews and Christians’ plight in this case. In a separate dissent authored by Sotomayor and joined by Kagan, that sympathy was gone.

Sotomayor went so far as to say Cuomo’s orders not only didn’t discriminate, but gave them “preferential treatment in comparison to secular gatherings.” While awful, it’s noteworthy that only two justices were willing to say something this anti-religious and extreme.

Calling Sotomayor a rubber stamp for whatever the left wants is unkind to stamps, which at least serve a useful purpose. It’s clear there’s a sizeable majority of the court willing to side with religious adherents targeted with discrimination. And it’s also clear that with Barrett on the court, the dour view on religion that the Sotomayors and Cuomos of the world have won’t get treated with kid gloves.

The new era with Barrett on the court is starting off protecting religious liberty. That’s a great way to kick things off.

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