When U.S. Supreme Court Associate Justice Samuel Alito spoke to the National Lawyers Convention of the Federalist Society in early November, no one would have predicted that his address would be a Christmas gift to America.
Alito’s basic message was a warning that the First Amendment’s guarantee of religious liberty — our “First Freedom” —is being jeopardized as never before by politicians using Covid-19 as an excuse to violate the Constitution.
As HillFaith reported last month, Alito told the convention at the outset of his address, which he delivered virtually, that “the pandemic has resulted in previously unimaginable restrictions on individual liberty.”
After cautioning that he was speaking as a judge and not as a policymaker, Alito continued, noting “all that I am saying, and I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”
Alito singled out restrictions on church gatherings for particular attention in his address.
“It pains me to say this, but in certain quarters religious liberty is fast becoming a disfavored right.” He pointed to the 1993 Religious Freedom Restoration Act (RFFRA) as a measure of how far the country has come in the years since. That measure was passed with nearly-unanimous support in Congress and signed into law by President Bill Clinton.
“Today that widespread support has vanished, when states have adopted their own versions of RFFRA, they have been threatened with economic boycotts,” Alito said.
He cited “the protracted campaign” against the Little Sisters of the Poor Catholic charity, who “have been under unrelenting attack for the better part of a decade. Why? Because they refuse to allow their health insurance plan to provide contraceptives to their employees.”
Alito also cited the Masterpiece Cakeshop Decision out of Colorado and Ralph’s Pharmacy case from Washington state, and then observed that, sadly, “for many today, religious liberty is not a cherished freedom, it’s often just an excuse for bigotry and it can’t be tolerated.”
But then consider what followed Alito’s address. Just days later, the High Court in a 5-4 decision struck down New York Gov. Andrew Cuomo’s clearly discriminatory edicts against Orthodox Jewish and Catholic congregations in Brooklyn.
In that decision, Justice Neil Gorsuch pointedly observed that, “people may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops.
“No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of ‘essential’ businesses and perhaps more besides.
“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.”
It normally takes time for the rest of the federal court system, to say nothing of the state courts, to catch up with a Supreme Court decision, but look what happened within days of Roman Catholic Diocese of Brooklyn, New York, v. Andrew M. Cuomo, Governor of New York.
On the West Coast, California Superior Court Judge Gregory Pulskamp cited the High Court’s decision in slapping down Gov. Gavin Newsom’s blatantly discriminatory ban on church gatherings.
Pulskamp singled out Newsom’s recently issued “Blueprint for a Safer Economy” and “Regional Stay at Home Order” as failing to satisfy the First Amendment’s guarantee of religious freedom of worship and practice because they aren’t applied equally and in the least restrictive manner necessary to achieve an essential public interest.
“In this case, the restrictions are not ‘neutral’ and of ‘general applicability’ because they assign entities into disparate classifications, which results in religious activities being treated less favorably than comparable secular activities,” Pelskamp wrote.
“For example, the ‘Purple Tier’ of the ‘Blueprint for a Safer Economy,’ and the most recent ‘Regional Stay at Home Order,’ both impose a total ban on indoor religious services, while simultaneously permitting a wide range of secular indoor activities to varying degrees.
“Entities permitted to engage in indoor activities – also known as ‘essential businesses’ or ‘critical infrastructure’ – include big-box retail stores, grocery stores, home improvement stores, hotels, airports, train stations, bus stations, movie production houses, warehouses, factories, schools, and a lengthy list of additional businesses.
“It is important to note that almost all of the entities that are allowed to host indoor operations do not engage in activity that is constitutionally protected, whereas houses of worship do.”
Pulskamp’s reasoning prompted Thomas More Society Senior Counsel Chris Ferrara to observe that, “the Supreme Court’s decision in Brooklyn Diocese v. Cuomo has opened the way to the liberation of churches from the absurd and bigoted superstition that they are veritable death chambers threatening the entire population.
“Not even hair salons, which by the services offered necessitate close personal contact, have been subjected to the onerous and barefaced biases heaped upon houses of worship.”
And now, for evidence that Alito’s Federalist Society address and the Brooklyn decision it heralded are together the Christmas gift to America that keeps on giving, the Catholic Diocese of the District of Columbia are suing D.C. Mayor Muriel Bowser’s clearly discriminatory Covid regulations.
And in California, Pastor Mike McClure of Calvary Chapel in Silicon Valley continues to defy Santa Clara County officials enforcement of Newsom’s illegal edicts. As do Pastor John MacArthur in Southern California and a growing number of congregations across America.
This is beginning to look a lot like a Constitutional Revolution. As Alito and the Court’s majority said in the Brooklyn case, “even in a pandemic, the Constitution cannot be put away and forgotten.”
COMING IN JANUARY 2021
WHAT: Eight 1-hour weekly Zoom video sessions, led by HillFaith’s Mark Tapscott