Cutting back on Cuomo

Near midnight last night the Supreme Court granted temporary injunctive relief from the strictures of the edicts setting capacity limits in houses of worship in certain designated hotspots. The Court’s per curiam ruling in favor of the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, limited as it is, nevertheless represents a shift in the Court’s center of gravity on the application of basic First Amendment principles to one-man rule in the era of COVID-19. The one-man rule in this case is that of Emmy Award-winning New York Governor Andrew Cuomo. The Court’s per curiam opinion, concurrences, and dissents are posted here.

The New York Post story the ruling is a marvel of concision, but Josh Gerstein’s Politico story captures the underlying dynamics that are evident in the opinions. If you think you’ve had it with Chief Justice Roberts, rest assured that Justice Gorsuch concurs, as they say. Gerstein writes:

Gorsuch appeared to skewer and diminish Roberts’ concurring opinion in the California cases that went before the court on an emergency basis in May.

“As we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms,” Gorsuch wrote. “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence … courts must resume applying the Free Exercise Clause.”

Gorsuch also accused Roberts of “a serious rewriting of history” for now insisting that his May opinion did not rely on a century-old Supreme Court precedent that allowed mandatory smallpox vaccinations in Massachusetts.

“We may not shelter in place when the Constitution is under attack. Things never go well when we do,” Gorsuch warned.

Justice Gorsuch’s concurring opinion is only six pages long. For those of us who chafe against dictatorial rule, it makes for inspirational reading. Gorsuch concludes with a dig at Justice Breyer:

It is easy enough to say it would be a small thing to require the parties to “refile their applications” later. [Citation omitted.] But none of us are rabbis wondering whether future services will be disrupted as the High Holy Days were, or priests preparing for Christmas. Nor may we discount the burden on the faithful who have lived for months under New York’s unconstitutional regime unable to attend religious services. Whether this Court could decide a renewed application promptly is beside the point. The parties before us have already shown their entitlement to relief. Saying so now will establish clear legal rules and enable both sides to put their energy to productive use, rather than devoting it to endless emergency litigation. Saying so now will dispel, as well, misconceptions about the role of the Constitution in times of crisis, which have already been permitted to persist for too long.

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter
churches, synagogues, and mosques.

In his dissent Roberts responds sharply to Gorsuch. Let the healing begin.

Did I say the ruling in favor of the faithful was 5-4? Justice Barrett made the difference this time around. Today we can give thanks for President Trump and the justice.

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