‘Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,’ wrote Supreme Court Justice Neil Gorsuch.
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By
Ilya Shapiro
DECEMBER 1, 2020
Late on the night before Thanksgiving, the Supreme Court
granted an injunction against New York state’s restriction on religious services, with 10- or 25-person occupancy limits depending on whether the gathering is in a “red” or “orange” zone, respectively, according to viral prevalence. Although the justices split 5-4, with Chief Justice John Roberts voting to deny the injunction on a technicality, it seemed like a no-brainer: Houses of worship were treated differently than many similarly situated secular facilities, so the state executive order couldn’t stand as a basic First Amendment matter (and equal protection, although the Court didn’t discuss that framework).
I called it a “
Thanksgiving miracle,” with the Court finally pushing back on expansive and arbitrary COVID-19-era restrictions rather than blindly deferring to government officials. Then I went on to enjoy the long holiday weekend — Thanksgiving is my
favorite holiday — with minimal time on social media or reading anything work-related.
So it was with sadness if not surprise that I discovered that the last few days have seen an explosion of anger and disbelief from progressives, academics, and Twitter trolls alike. The criticisms seem to boil down to two major lines of attack: (1) The Court is privileging religion over everything else; and (2) the Court isn’t taking the pandemic seriously or is substituting its own ill-considered scientific views for those of expert health officials. Overarching both of these points is the construct through which many on the left now view the Supreme Court: that a conservative majority is simply imposing its ideology, regardless of what law or precedent might dictate.
Those arguments betray a misunderstanding of
Roman Catholic Diocese of Brooklyn v. Cuomo — not surprising given how fact-specific most pandemic-related cases are — and read more into it than what it actually says. . . .
