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

R. Albert Mohler, Jr.
November 30, 2020

What a difference a single justice on the United States Supreme Court makes—it’s just a matter of math.

Indeed, on Wednesday of last week a five-justice majority ruled in favor of the Roman Catholic Diocese of Brooklyn as well as a major Jewish congregation in New York City who sued New York Governor Andrew Cuomo for what they believed were violations against religious liberty. They claimed that in the midst of the pandemic, the Governor violated their Constitutional rights of religious liberty and, for that matter, freedom of assembly, freedom of speech, and freedom of religious expression.

They sought immediate relief from the Supreme Court having lost their appeals at the lower-level courts. By Wednesday, they received their favorable ruling by a 5–4 ruling by the Supreme Court—a one-vote victory, but that one vote was the difference between victory or defeat for religious liberty.

What does this mean? For now, it means that religious congregations in Brooklyn are free from specific restrictions put in place by Governor Andrew Cuomo. The issue, however, goes far beyond Brooklyn and New York—this is a ruling with massive national consequences in the defense of religious liberty.

The Supreme Court has generally steered clear of taking on cases involving state and local policies in the midst of the pandemic. There was a case involving a Calvary Chapel congregation in California, which asked for immediate injunctive relief against local officials as well as the policies of California Governor Gavin Newsom. Another case came out of Nevada, which the Supreme Court flatly (and wrongly) denied a hearing. In that case, an evangelical congregation also sought relief when the state prohibited religious congregations from gathering while allowing casinos to remain open. Caesar’s Palace was open for business, but religious congregations were effectively forced to shut down.

That all changed on Wednesday when the Supreme Court made a significant turn. In essence, the Court said, “This has gone on long enough, and government has gone too far.”

In the case of New York, Governor Cuomo attempted to defend his policies by showing a multicolored map of areas in New York that reflected the intensity of COVID-19. Red indicated the highest level of intensity. If a church or religious congregation was found in that red zone, he imposed a 10 person capacity limit. Governor Cuomo, however, fashioned a list of those services deemed “essential” and “non-essential.” Religious congregations were labeled as non-essential. That is a determination that is far beyond his pay grade—or the proper role of any human government.

From a Christian perspective, we emphatically declare that government ought not be vested with the right to determine whether any religion is or is not essential. Government has no responsibility, no power, to decide what congregation is or isn’t necessary for the public. Government should recognize its incompetence to make decisions on religious issues—hence the Constitutional protections of the First Amendment that render government powerless over issues of religion.

On Wednesday, however, the Supreme Court finally intervened.

The majority opinion stated, “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 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.’ 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. 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 snide comment about acupuncture was followed by a crucial and emphatic point raised as a rhetorical question. Justice Gorsuch queried, “Who knew public health would so perfectly align with secular convenience?”

Justice Gorsuch pinpointed the major problem at the center of state policies towards religious congregations. Certainly, it might be argued that government does indeed have a role and responsibility of establishing a list of businesses and services deemed essential during certain and rare emergency situations. That is understandable and necessary for any responsible government.

What we have seen in many states, however, is that these lists of “essential services” are anything but objective. It has been enormously political, driven by a secular worldview that flippantly rejects religious services and gatherings as non-essential. Furthermore, in many of these cases, lobbyists are deployed to make sure that the business interests they represent conveniently end up on the “essential services” list.

The Supreme Court’s action last week was powerful—a ruling that sent a crucial message from coast to coast. This was not a decision by a Federal District Court or one of the Appellate Circuits—this was a ruling handed down by the United States Supreme Court. The Court emphatically declared that even in the midst of a pandemic, the Bill of Rights cannot be suspended.

As Justice Gorsuch declared, “Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available.” Indeed, as Justice Brett Kavanaugh argued in his concurring opinion, “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 the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake.”

This decision was decided by a mere 5–4 margin, which necessitates a closer look at the math and how the justices came down on this crucial case. Five conservative justices came down in favor of religious freedom—Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.

It is arguable that there has never been a clearer picture of the adage that elections have consequences. Of those five justices in the majority, three were appointed by President Donald Trump.

This also reminds us of Senate Majority Leader Mitch McConnell’s leadership and actions taken over the last four years that began when he stalled the confirmation of President Barak Obama’s nominee Merrick Garland to the Supreme Court after the death of Justice Antonin Scalia. Since then, he has carefully shepherded in an incredibly short amount of time the confirmation of three justices to the United States Supreme Court—not to mention the host of seats filled at lower-level appellate and federal courts. The addition of Justice Amy Coney Barrett to the Supreme Court in October also added the vital fifth vote in last week’s ruling.

Elections do indeed have consequences. The math of this decision by the Supreme Court could have been very different had any of these factors gone the other way, which brings us to the present realities facing the people of Georgia this winter.

The Senate majority is at stake. The runoff election, which will take place on January 5th, will determine whether or not Republicans hold on to their slim majority in the Senate. And as this case for religious liberty reminds us, not only is the Senate majority at stake, but so is the future of the Supreme Court.

The stakes could not be higher.

R. Albert Mohler, Jr.

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