Friday, November 27, 2020

The First Amendment applies during pandemics.

Such was the finding of the Supreme Court late Wednesday, enjoining Governor Cuomo from color-coding worship services out of existence.

The majority opinion was written by the eminent Swedish jurist Per Curiam, but the fireworks are in the concurring opinion of Justice Gorsuch.

If you pick up on an undertone of "FINALLY" in his opinion, you are paying attention.

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 pickup another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?

As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. 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. Nor is the problem an isolated one. In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___,  (2020) (GORSUCH J., dissenting). In far too many places, for far too long, our first freedom has fallen on deaf ears.

And there's more than a little heat flung at the Chief Justice, too--but I'll let you find that yourself. For the record, there seems to be an awareness among most of the dissenting Justices that Cuomo's restrictions are suspect, but they would have preferred to wait until the Governor activated his colorful sharpies again first. 

2 comments:

  1. Yes, definitely some fireworks between Roberts and Gorsuch, which surprised me. Given Gorsuch's jaw-dropping decision in the transgender case, I thought they had developed a mutual respect in their deception.

    But no fireworks, or even a fire snake, among Kagan, Breyer, and Sotomayor: the Lockstep Left. I've never seen three such robotic justices.

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  2. Another explanation might be the amateur approach to gathering in places of worship, the relatively few professionals who can take responsibility for cleaning up, monitoring crowds, greeting people, etc.. I've never worked for a church that didn't hire a custodian to focus on M-F 9-5, possibly the five least-busy days of a church week. Of course, businesses make money for the 1% and churches not so much. So there's that. All that said, government on all levels, especially federal, have been criminally clumsy in their approach to keeping people safe. Half a cheer for a third millennium Darwinist solution for the old, the poor, and the workers essential to aristocratic comfort.

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Be reasonably civil. Ire alloyed with reason is fine. But slagging the host gets you the banhammer.

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