Quote of the Day:
“It pains me to say this,” Alito said, “but in certain quarters, religious liberty is fast becoming a disfavored right.”
–Supreme Court Justice Samuel Alito, speaking Thursday night at The Federalist Society
Justice Alito was speaking of the effect of the Obergefell v. Hodges, the Supreme Court’s ruling on same-sex marriage, which led to attempts to force business owners to provide services for gay wedding receptions, even if they have religious objections, as well as the COVID-19 restrictions on worship in churches, synagogues, and mosques. His remarks deserve consideration.
With regard to the pandemic, Alito said:
In addressing Covid-19, Alito pointedly noted that he was not trying to diminish the severity of the pandemic, which he said has taken a heavy human toll, leaving “thousands dead, many more hospitalized,” nor was he commenting on whether the restrictions represent good public policy. “I am a judge, not a policy maker,” he said.
But he said that he wanted to emphasize the impact of the restrictions on the rule of law and individual rights as officials have moved to combat the virus.
“We have never before seen restrictions as severe, extensive and prolonged,” he said, and added that the pandemic has resulted in “previously unimaginable restrictions on individual liberty.”
Alito said that the Covid crisis has served as a “sort of constitutional stress test” that has highlighted “disturbing trends” that were present before the virus appeared. He pointed to emergency orders over the summer where the court sided with officials who sought to restrict the number of people who could worship in person and he lambasted his colleagues for ruling in favor of state and local officials even when he thought churches were being treated differently from other entities that had fewer restrictions.
On the same day Alito spoke, the Roman Catholic diocese of Brooklyn filed a petition seeking relief from an executive order from New York Gov. Andrew Cuomo that is keeping the churches closed.
I’m pulling for the diocese, but I can’t help bleakly reminding myself that, when it comes to being open for business, strip clubs seem to be having better luck than churches. The Free Beacon reports that a Superior Court Judge in San Diego has ruled that restrictions be lifted on strip clubs so that they can open, while local churches remain closed.
The Judge ruled that the First Amendment rights of the strip clubs are being violated. There will be a final hearing on the matter, but for now the strip clubs can operate. The clubs argued that they were facing financial devastation from the lockdown.
The Free Beacon comments:
Religious-liberty advocates said that the case could pave the way for lifting coronavirus restrictions against churches. Paul Jonna, special counsel for the Thomas More Society, which is representing churches challenging the restrictions, expressed confidence that this decision bodes well for the churches. If strip clubs are entitled to constitutional protections, then churches are as well, he told the Free Beacon.
“If you’re going to accept that argument that dancing nude is protected speech that’s so significant that it overcomes the government’s interest in regulating its citizens with COVID-19 orders, then obviously the divine worship of God, which is expressly mentioned in the First Amendment, should be held to a higher standard,” Jonna said.
. . .
Churches in California have been locked in legal struggles with state authorities for months as churches of different denominations take legal action to try to end the indefinite limitations on indoor services. Jonna said that the San Diego decision highlights “the absurdity” and double standards that have defined the state’s approach to lockdowns.
It may also highlight that religious liberty is becoming a disfavored right.