Monday, November 30, 2020

Part I

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What a Difference One Justice Can Make: The Supreme Court Finally Steps Up to Defend Religious Liberty During the COVID-19 Pandemic

What a difference a single justice on the Supreme Court makes. It’s just a matter of math. So many decisions that come down on crucial issues turn out to be something like 5-4 of the nine justices of the Supreme Court. That is a one justice margin, and who holds that margin turns out to be just about everything on many of the most controversial issues of our day. Now, by most reckoning, when you look at the Supreme Court in its composition right now, you’re looking at six generally conservative justices and three generally liberal justices. It also lines up in a fairly partisan way. The six conservative justices appointed by Republican presidents, the three more liberal justices appointed by Democratic presidents.

You also have, if you’re doing the math, many decisions that come down, not six three on controversial issues, which end up being five four. The reason for that is there is often a swing justice. In this case, it is the current chief justice of the United States, the Republican George W. Bush appointed, Chief Justice John G. Roberts Jr., who’s turned out to be a swing justice. He was against the other five conservative justices in a very important religious liberty decision that came down Wednesday, late on Wednesday, just before Thanksgiving. In this case, the action was undertaken by the Roman Catholic diocese of Brooklyn, and also similarly at the same time, a major Jewish congregation also in New York city.

The Jewish congregation, the synagogue and the Roman Catholic diocese brought action against Andrew Cuomo in his role as the governor of the state of New York for violating religious liberty by restrictive regulations that were handed down in the midst of the pandemic, claiming that the governor had violated their constitutional rights of religious liberty, and for that matter, freedom of assembly and freedom of speech, but most importantly, the freedom of religious expression, and that they sought immediate relief from the Supreme Court of the United States, having made appeal elsewhere before. What they applied for was an application for injunctive relief, and they received it on Wednesday. They received it by that 5-4 majority.

What does that mean? Well, it means for right now, in the case of the Roman Catholic diocese of Brooklyn and this particular Jewish congregation, and other congregations, evangelical, Jewish, Roman Catholic, you name it, in the covered area, they are now free from the specific restrictions put in place by the democratic governor of New York, Andrew Cuomo. But the big issue here goes far beyond Brooklyn. It goes far beyond New York. This is a decision that will have national consequences and very important consequences in defense of religious liberty. Let’s look at the big picture.

What you have here is the first time that the Supreme Court of the United States, since the beginning of the COVID-19 pandemic, has stepped in clearly on behalf of the religious liberty claims made by religious congregations. In this case, again, Roman Catholic and Jewish. But it could just as well have been evangelical mainline protestant. The point is, these particular groups found their way before the Supreme Court able to ask for immediate injunctive relief, and they received it.

But also, looking at the big picture, this means that the Supreme Court of the United States decided differently the day before Thanksgiving than it had decided in two crucial moments earlier in the COVID-19 pandemic. The first of them came with a case that was originating from California Calvary Chapel that also appealed the restricted policies put in place by local government there, but also by the California governor, Gavin Newsome.

The other case actually has to do with a case the Supreme Court decided not even to hear, but it should have. It certainly should have. Once again, in this case, the Supreme Court basically failed the test of supporting and defending religious liberty, because it did not give relief to an evangelical congregation in the state of Nevada that had appealed restrictive policies put in place by the governor and the state of Nevada that actually allowed for the opening of Caesar’s Palace as a casino, but not of an evangelical congregation on the same terms. In other words, you could go to the casino in Nevada, you couldn’t go to church on the same terms. But what we saw then in both of those cases, in particular the case coming from California and the case coming from Nevada, was the fact that the Supreme Court said that in the context of the COVID-19 pandemic, it was not going to offer injunctive relief. It was not going to step in and contravene.

Decisions and policies that have been put in place by state and local governments trying to fight the pandemic. So, what’s so important about Wednesday? Well, Wednesday, the Supreme Court made a very significant turn. By a 5-4 majority, the Supreme Court justices said, “This has gone on too long, and government has gone too far.” The facts in the case that came from New York that was decided on Wednesday are very interesting. For one thing, Governor Cuomo had offered a map, basically a multicolored map of areas that have the greatest COVID intensity. The worst color in terms of intensity was red. According to the governor’s policies, when a church, a congregation, a synagogue was found in that red zone, he had imposed a 10 and 25 person capacity limit on churches, and that would be where it’s red, 10, a limit of 10 individuals.

But the governor of New York went on and did what many other government officials have tried to do, and that is to list what is and is not essential. Left off the list were religious congregations. Now, here’s something I think is just genuinely important. I think it’s very important that conservative Christians understand that we actually don’t want the government to decide that church is essential. We want government to understand that it has no responsibility or power to decide what congregation is or is not essential at all. What we desperately need here is the fact that government should recognize its incompetence to decide these issues, and that the constitution has explicitly rendered the government incompetent and powerless. But what we have seen is that there have been governors, mayors, county executives and others that have tried to step in. The Supreme Court finally said Wednesday, “No more.”

For one thing, as you’re looking at the actual policies that have been handed down by the New York governor, even the limit of 10 makes no sense when it is not tied in any way to even the size of a congregation’s building. The majority opinion from the court declared this, “Among other things, the maximum attendance at a religious service could be tied to the size of the church and the synagogue…. It is hard to believe,” said the court that admitting more than 10 people to a 1,000 seat church or a 400 seat synagogue would create a more serious health risk than the many other activities that the state allows. Justice Neil Gorsuch in a concurring opinion pointed out, “At the same time, the governor has chosen to impose no capacity restrictions on certain businesses he considers ‘essential'”–putting the word essential in quotation marks.

Gorsuch continued, “And it turns out the businesses the governor considers essential include hardware stores, acupuncturists, and liquor stores, bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. the justice continued, “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.” That’s a snide comment about acupuncture. The justice then made an emphatic point in the form of a question: “Who knew public health would so perfectly aligned with secular convenience?” Now, that’s really a very, very important insight, because Justice Gorsuch pointed out that the list of what is considered essential that was handed down by the New York governor would include many enterprises camping, by the way, as on it, that are about a secular lifestyle. You can see where this is headed.

Contrasted with that is the fact that religious congregations and religious services were explicitly left off the essential list. Now, that’s just a huge problem. Now, it might be argued that government has a role and responsibility in establishing among businesses which would and would not be essential under certain emergency conditions. That’s understandable. But what you need to note here is that given the power of government, the size of the New York state government, and the reality of human sinfulness, the list turns out to be anything but objective. In many ways, it has to do with who has a lobbyist to make sure that their enterprise is on the essential list. We’ve seen that state by state, and Justice Gorsuch just points to that reality. Again, the Christian point should be that the government should acknowledge right up front that it has no right to make any such decision about essential or non-essential when it comes to the choices made by Americans who have the right of religious liberty.

The constitution is absolutely declared on the issue of religious liberty, but courts should not make decisions in this light, in this kind of context, on the decisions made by American citizens who have the unalienable right of the free exercise of religion, and especially when it comes to whether or not a church or another kind of congregation is going to be on an essential list.

It’s interesting to see that the chief justice who was in the minority of four, rather than the majority of five, in this case, said that his major concern was timing, because by the time the case actually arrived before the court, in this request for a preliminary injunction, the map had changed so that these particular congregations weren’t covered by the most restrictive provisions of the governor’s policies. But the majority said that could change at any point. These congregations could find themselves right back in a red zone with their religious liberty violated once again. So, the majority said just to make the point, the emphatic point they would go ahead and issue the preliminary injunction.

Now, we’re talking about the big picture here, not just the details. The big picture reminds us that this sends a massive signal coast to coast. We’re not just talking about a federal district court here. We’re not just talking about one of the appellate circuits. We’re talking about the Supreme Court of the United States, and state by state and case by case, the facts may actually differ, but the point is emphatically clear in the context of the COVID-19 pandemic, the Bill of Rights has not been suspended. Justice Gorsuch summarized the issue this way: “Government is not free to disregard the first amendment in times of crisis. At a minimum,” said the justice, “that amendment”–that is the first amendment–“prohibits government officials from treating religious exercises worse than comparable secular activities unless they are pursuing a compelling interest in using the least restrictive means available.”

Now, the point of Justice Gorsuch, once again, is that the government had other means of seeking to further its interest that would be less restrictive on religious congregations. Another of the justices in the majority, Justice Brett Kavanaugh, said, “I do not doubt the state’s authority to impose tailored restrictions, even very strict restrictions on attendance at religious services and secular gatherings alike. But,” said Justice Kavanaugh, “the New York restrictions on houses of worship are not tailored to the circumstances given the first amendment interest at stake.” Another very important insight that one from Justice Kavanaugh. But before we leave this issue, we need to go back to the math.

This was a 5-4 ruling by the court. That means that the movement of one justice from one side to the other would have made all the difference. Now, we would have wished for a larger majority in this case in defense of religious liberty, but let’s face it, when you’re looking at a 5-4 decision, you had better look more closely at how that lines up. That means that there were five conservative justices who were willing to put the court on the line handing down this injunction. They would have been Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Now, what do you notice about that? They are five conservative justices, but three of the five were nominated to the Supreme Court of the United States by president Donald Trump, three of the five.

This also reminds us that at least one of those is also due to the leadership of senate majority leader, Mitch McConnell, in delaying the Senate from dealing with a final nomination that was made by President Barack Obama. That would be the nomination of federal judge, Merrick Garland to the Supreme Court. So, it took a set of circumstances that were actually the result of elections that produced what happened in the nomination process, whereby Neil Gorsuch and then Brett Kavanaugh and then Amy Coney Barrett, just before the election, you remember, were appointed and confirmed to the Supreme Court of the United States. That took a Republican president, and it also took a Republican majority in the United States Senate, which brings us all around to say that it could have been different math under different circumstances.

If a Democratic president had been making those nominations, it would have been different math. As we’re thinking about the special election with the future of the United States, Senate majority at stake, the special election for those two Senate seats in Georgia, it reminds us once again that there are two crucial factors in the future composition of the Supreme Court. The first and most important is answering the question, who is president of the United States? And thus has sole authority to make nominations. But the second question is, who is in control of the majority in the United States Senate? Because that is second only to the first question, and absolutely essential to answering the question about the future of the court.

So, as you think about this big win for religious liberty from the Supreme Court the Wednesday before Thanksgiving, you better think about the future of the Supreme Court that will come down to a special election in Georgia the first Tuesday of the new year.

Part II

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An Important Religious Freedom Case to Monitor from the Commonwealth of Kentucky: Christian Schools Challenge Governor’s Order Stopping In-Person Instruction

But still on the issue of religious liberty, it’s very important, secondly, we turn to headline news out of the Commonwealth of Kentucky. In this case, the plaintiff is seeking relief, and the cause of religious liberty were not religious congregations, but rather were religious schools. In this case, specifically, Christian schools, schools identified as Christian, including Danville Christian Academy here in the state of Kentucky, but also schools throughout the Commonwealth, including Highland Latin School right here in Louisville.

In this case, they were appealing restrictive orders handed down by Kentucky Governor Andrew Beshear, another Democrat. In his official capacity as governor of Kentucky, he put in place rules that would shut down all primary and secondary education in the state of Kentucky, most importantly, the public schools, but extended it also to private schools, at least until the 4th of January when there might but might not be a reconsideration of whether or not the schools could meet in person.

Even schools meeting the distancing guidelines, mask wearing and other things, that’s really important, because one of the things pointed out by the Supreme Court, and also germane to at least some of the schools on this list is that they are otherwise following the regulations and stipulations, the health policies that have been handed down by rightful authorities concerning these issues. But the point is they went to the Federal District Court in Frankfurt, Kentucky, and made appeal also for injunctive relief, stating that the governor’s policies were violating the school’s religious freedom.

Now, that means in particular the schools acting on behalf of the citizens who have created the school and are sending their children to the school, and thus you had a similar kind of situation. At least last Wednesday, it looked like the schools are going to get relief. In this case, it came from Federal District Court judge for the Eastern district of Kentucky, Judge Gregory Van Tatenhove, and he also issued a very eloquent defense of religious liberty. He stated in the opening of his decision, “Part of the genius of the American tradition is that right from the start, we were clear about what mattered. We even made a list,” said the judge, “the Bill of Rights. Think of it as a catalog of value so dear that they deserve protection from future edicts or even majority’s at a moment in time. Infringing these values is rare,” said the judge. “They matter that much.”

The judge went on to write, “This case is about one of those values, the ability we each have to follow our religious convictions without interference from the government. Religious schools across the Commonwealth have been closed by the governor to in-person teaching along with secular schools. This prevents the corporate nature of religious education, which is insinuated with worship, prayer and mentoring.” So, this Federal District Court judge, acting on that same day as the 5-4 majority of the Supreme Court, came to a parallel decision, but in this case, having to do with Christian schools. But you’ll notice that the exercises that the judge cited as being essentially religious and thus protected, included worship and prayer and mentoring. But this is a case we’re going to have to watch very clearly, because even as Judge Gregory Van Tatenhove handed down the decision defending the religious liberty rights of these schools, as the week began, the Federal Appeals Court and the sixth circuit actually reversed Judge Van Tatenhove’s decision.

The Courier Journal, that is the main Louisville newspaper, thus ran two articles after the decision by Judge Van Tatenhove. The headline was, “Beshear can’t halt in-person instruction at private religious schools in Kentucky,” but updated on Sunday evening was a news story with a headline, “Appeals court allows Beshear to halt in-person classes at Kentucky’s religious schools.” Now, again, we’re going to watch this case very, very closely. I wanted to draw attention to the absolutely eloquent defense of religious liberty in the Bill of Rights articulated by Judge Van Tatenhove, and I hope these schools are successful on their appeal. I support their cause and I support their appeal. It’s important to recognize they are not claiming the ability or right to absolutely disregard prudent health regulations. That’s not the point.

They are saying that the religious mission of their schools is a protected first amendment right. But even as we leave this issue for now, and we’ll watch it closely, not all religious schools are established on the same basis. Some are under the direct control of a religious body. Others are more independent. There are different circumstances, but it is clear that in some cases they function more, and in other cases less as de facto religious congregations in themselves.

It’s going to be very interesting to see how the courts parse this issue, but it’s really important for us to recognize that religious liberty is not confined to the walls or the actions of a religious congregation itself. We don’t lose our religious liberty when we walk out of the door of our synagogue or church or mosque.

Part III

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Who Will Defend Religious Liberty Going Forward in America? Will It Be An Issue Only for Believers? An Ominous Proposition

But next, as we think about all these issues, looking at the big picture, it’s very interesting to look at a series of editorial responses, opinion pieces that have come in just one major newspaper. In this case, the most influential newspaper in the nation’s capital, the Washington Post.

There was an article by Steven V. Mazie, who’s a correspondent for The Economist. The argument that was made by him is that you now have this very clear conservative majority on the Supreme Court, and so the Supreme Court’s jurisprudence on religious liberty is going to change. He doesn’t seem to think that is a very good idea. On the other hand, Henry Olsen wrote a piece with the headline, “The Supreme Court finally has a majority that will protect religious freedom.” Olsen fortunately, and I think quite rightly, celebrates the arrival of this new defense and support of religious liberty coming from the Supreme Court of the United States.

But there was yet another opinion piece that ran in the Washington post in the aftermath of the ruling by the Supreme Court on Wednesday. This one came from Kevin Bane, identified as a first amendment attorney in DC. His article asked the question, “Is religious freedom a liberal or conservative value?” He points out that looking at the ruling handed down on Wednesday, people will say, “Well, this was a conservative victory.” Whereas looking at the course of jurisprudence court rulings about the Bill of Rights in a previous generation, you would have seen an affirmation of the Bill of Rights as essentially a liberal decision, either a defense of the Bill of Rights or an expansion in the progressivist vision of the rights enumerated in the Bill of Rights.

Of course, liberal courts have taken it even beyond, and thus Bane’s asking the interesting question, how did religious liberty become identified as a conservative value? Now, that’s a fascinating question, and it’s one we’re going to look at in much greater depth in days and weeks ahead on the briefing. It comes down to this, however. Over and over again, we talk about the very well documented objective fact that as you’re looking at a religious map of the United States, the most religious sections of the country also turn out to be the most conservative. It’s not a one to one identity, but it’s growing increasingly close.

The scary thing in all this is that evidently it is basically religious people now who care about the defense of religious liberty. It wasn’t always that way in the United States, and asking the question why it’s different now, well, that’s worthy of a great deal of our attention in days ahead.

Ominously, it may turn out that the defense of religious liberty in this country is historically going to be tied to the continued large numbers of people in the United States who consider themselves religious, and thus defend religious liberty, which should not, by the way, in principle be something that matters only to religious people, the defense of religious liberty.

But in an increasingly secular age, that proposition is, let’s just say this, quite ominous. For that reason and many others, we’re going to watch it very, very closely.