Sometimes we get a signal, simple as that. The Supreme Court just ruled 5-4 on April 9 that California’s COVID-related State restrictions targeting “in-home religious gatherings” are unconstitutional, reversing the US Court of Appeals, 9th Circuit. This is the fifth time in a year the High Court has slapped back attacks on religious liberty. This decision is significant, as are counterarguments. Sometimes you learn more from a dissent than a decision. This is such a case.
In this case, the High Court ruled California’s Democrat governor could not prevent people from gathering for in-home worship services – based on public health – while allowing similar activities in secular settings. To most Americans, this is common sense, just equal application of the law to religious and non-religious gatherings. But not to the modern left.
The Court’s conservative majority – Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett – found the state’s targeted restriction discriminates against the free exercise of religion. The majority wrote, “California treats … comparable secular activities more favorably than in-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants …”
They noted the appellate court did not find secular gatherings “pose a lesser risk of transmission than … proposed religious exercise at home,” adding government cannot “assume the worst when people go to worship …but assume the best when people go to work.”
Accordingly, the Supreme Court overturned the 9th Circuit decision not to enjoin – that is, not to reverse – California’s unconstitutional restriction of religious gatherings. The High Court again affirmed that anti-religious discrimination has no place. It violates our First Amendment.
But this leads to another question, an obvious one: What was the 9th Circuit thinking? What was the Supreme Court dissent’s argument against religious liberty? How can they justify unfair discrimination? The answer is illuminating.
The High Court’s three judicial activists, that is, Justices Kagan, Breyer, and Sotomayor, wrote that the state’s limitation on “in-home gatherings” to “three families” applies equally to religious and secular assemblies. Given that religious services are occurring in homes with regularity, since the state restricts church, synagogue, and mosque gatherings, this is rather disingenuous. It is a bit like saying communion is equally banned in religious and secular settings or gathering for prayer is equally forbidden in homes and at baseball games.
Putting aside the question of whether the government has a right to tell you how you use your home, who you can invite, for how long, when and under what conditions – essentially a 4th Amendment question – the dissent’s first argument is a feint, minimizing religious rights by comparing them to a family reunion.
What that tells you right away is that these three justices see no basis for giving religious liberty or gatherings special protection. To them, religious gatherings are indistinguishable from other gatherings.
That is not, of course, how our Constitution’s Framers saw religious liberty.
But this dissent goes further – and Justice Roberts, while not joining the three activists’ dissent, effectively hid under the table, dissenting without comment. Defending an anti-religious posture, the three Supreme Court activists affirmed the 9th Circuit’s twisted reasoning.
That reasoning went like this: “The State reasonably concluded that when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting …that participants in a social gathering are more likely to be involved in prolonged conversations; that private houses are typically smaller and less ventilated than commercial establishments; and that social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”
Where does one begin? Yes, that inconvenient 4th Amendment does make enforcement by home invasion rather difficult. But take a closer look, think for yourself. Are those assumptions valid? Are church services necessarily “longer” than, say, a full-length movie, concert, hockey game, or dinner? Do more conversations occur at church services than at basketball games, corporate lunches, and on commuter buses? Is a home’s main room or basement necessarily smaller than an intimate restaurant, theater will-call line, or subway car? Are homes with air conditioning less ventilated than bowling allies, sports bars, cigar shops, and nursery hothouses? Are those caring and disciplined enough to get to church less caring and disciplined about health protection?
All this sounds like a terrible stretch, does it not? And why?
Because these activist justices – like activist judges, politicians, and those who hide under the table – are prepared to bend, reshape, and with judicial sleight-of-hand unmake textually clear constitutional provisions. They think they have that right, are on the bench to correct us, have been appointed not to interpret, not to apply words to facts, but to “reimagine” how America might be … less religious, less open, less free. And this is the problem.
What the modern left – in this White House, Congress, and on the federal bench – wants to do, thinks they have a right to do, is to control you. They see the Constitution as malleable, assume they arrive at work each day smarter than you and me, better equipped to define our future, remaking America in their image, quietly indifferent – even secretly hostile – to what the Framers designed. This dissent is emblematic, tells America more than its writers imagine.
What can we do about all this? Several things. Say a prayer for the Nation, be glad there is a 5-4 majority faithful to our Constitution’s text, fight Supreme Court packing, become active at state and local levels, assert basic rights without hesitation, be unafraid to think for yourself, follow what you know true, speak when you see the need, and on truth never concede.
More to the point, follow your heart, know that MOST of America understands liberty’s call, and when you feel drawn to do so, do not let any misguided court say you cannot practice your faith. These are testing times. We know from this dissent that hostility exists toward traditional constitutional understandings – of our First, Second, Fourth, Sixth, and Tenth Amendments. Our job is to stand – together and tall – for what others will not. Simple as that.