Jacob
Sullum | Posted: Apr 14, 2021 12:01 AM
The opinions expressed by columnists are their
own and do not necessarily represent the views of Townhall.com.
When
Christians met in each other's homes for prayer or Bible study, they had to be
careful. Such gatherings were illegal, and the organizers never knew who might
inform the authorities.
Although
that sounds like a scene from the Soviet Union, it actually describes the
situation in California under COVID-19 regulations that the Supreme Court
blocked last Friday. By issuing an injunction against Gov. Gavin Newsom's
restrictions, the Court reaffirmed that politicians must comply with the
Constitution when they decide how to deal with an epidemic.
The main
rule at issue in this case limited at-home religious gatherings, whether inside
or outside, to people from no more than three households. If two people from
different households joined a host for a prayer meeting or Bible study session,
for example, no one else was allowed to come.
As the
petitioners noted, that limit "does not permit an individual to gather
with others in her own backyard to study the Bible, pray, or worship with
members of more than two other households, all of which are common (and deeply
important) practices of millions of contemporary Christians in the United
States." Meanwhile, California was allowing much larger groups to gather
in other settings: inside of stores, barbershops, nail salons, tattoo parlors,
movie studios, and (in some counties) restaurants, for example, or outdoors at
restaurants, wineries, gyms, movie theaters, zoos, museums, sporting events,
concerts, political demonstrations, weddings and funerals.
The upshot
was that Californians could "sit for a haircut with 10 other people in a
barbershop, eat in a half-full restaurant (with members of 20 different
families), or ride with 15 other people on a city bus." But they were not
allowed to "host three people from different households for a Bible study
indoors or in their backyards."
Justice
Elena Kagan, who objected to the Supreme Court's injunction in a dissent joined
by Justices Stephen Breyer and Sonia Sotomayor, argued that California's
regulations did not implicate the First Amendment because they were neutral and
generally applicable. The state "has adopted a blanket restriction on
at-home gatherings of all kinds, religious and secular alike," she noted.
The
petitioners argued that Newsom's rules nevertheless amounted to "a subtle
but unmistakable religious gerrymander." Five justices were inclined to
agree, saying the plaintiffs were likely to prevail in their claim that the
restrictions on private religious meetings violated the First Amendment.
This is not
the first time that the Court has called attention to the impact of COVID-19
control measures on religious freedom. It blocked enforcement of New York Gov.
Andrew Cuomo's onerous restrictions on "houses of worship" last
November, vacated a decision upholding Colorado's limits on religious services
in December, and reached similar conclusions in four cases involving state and
local regulations in California two months later.
By now, the
Court said, it should be clear that public health regulations are subject to
strict scrutiny "whenever they treat any comparable secular activity more
favorably than religious exercise" and that the relevant consideration is
"the risks various activities pose, not the reasons why people
gather." To pass strict scrutiny, a state has to "show that measures
less restrictive of the First Amendment activity" -- such as face masks,
physical distancing, and more generous group limits -- "could not address
its interest in reducing the spread of COVID."
Kurt
Schlichter
Kagan is
certainly right, based on the Court's prepandemic precedents, that disease
control measures can be constitutional even if they incidentally impinge on
religious freedom. But Kagan, Breyer and Sotomayor always seem willing to
accept politicians' public health judgments, even when they are scientifically
dubious, change in the midst of litigation or result in policies that privilege
politically influential industries or explicitly treat religious gatherings as
a disfavored category.
At this
point, it is not clear that Kagan et al. can imagine a disease control policy
that would violate the Free Exercise Clause, provided it was presented as
necessary for the protection of public health, as such policies always are.
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