Most Americans celebrated Thanksgiving under less than ideal conditions this year because of COVID. Family gatherings last week were smaller than usual in many places, either through voluntary efforts of families or possibly due to executive orders from governors restricting such gatherings.
While we were enjoying the holiday, however, the courts were busy dealing with one specific type of executive order that impacts religious freedom, i.e., those limiting attendance at faith-based institutions such as churches and religious schools.
The U.S. Supreme Court, for example, issued an important decision stopping Governor Andrew Cuomo from issuing closure orders that disproportionately targeted churches. It also denied a challenge from a Louisiana pastor seeking to block his state’s restrictions, and asked New Jersey to respond to a lawsuit over its own mandate. In the lower courts, the 6th U.S. Circuit Court of Appeals upheld an order from Kentucky’s Governor Andrew Beshear closing all schools, public and private, for the near future, in the face of a religious discrimination lawsuit.
Here are the details.
In the most important case by far, the Supreme Court in a 5-4 decision issued an injunction against Gov. Cuomo’s executive order requiring church services to allow no more than 10 or 25 attendees, depending on the zone where the church was located. The Governor’s order did not apply equally to other secular institutions such as businesses and recreational facilities, and that disparity is what caught the eye of the five most conservative members of the court: Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Clarence Thomas and Amy Coney Barrett.
Although the New York restrictions had been eased by the time the court ruled, and several justices felt that there was no need to issue a ruling, the majority felt the need to ensure that the governor could not change his mind and re-institute the unconstitutional treatment of houses of worship.
The addition of Justice Barrett has definitely changed the dynamics of the court with respect to this issue. In previous religious freedom rulings by the court before Barrett’s arrival, similar restrictions on churches in Nevada and California were allowed to stand.
Justice Gorsuch was especially forceful in his concurring opinion in the New York case.
“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 other actions, Justice Alito turned down an emergency request from a Baton Rouge, Louisiana pastor to block that state’s COVID restrictions as it applied to his church. Life Tabernacle Church pastor Tony Spell fought unsuccessfully to obtain an injunction against the state, and petitioned the Supreme Court for a temporary order blocking the state from enforcing its rules while his appeal proceeded in the lower courts. Justice Alito, who reviews such requests coming from that area of the country, denied the request without comment.
The case could come back to the Supreme Court via the more usual route of an appeal from an adverse final ruling from an appellate court, which in this case is the 5th U.S. Circuit Court of Appeals based in New Orleans.
Justice Alito, exercising his authority as the justice who supervises the 3rd Circuit, requested the state of New Jersey to respond to a request from a church and a synagogue in that state for an emergency injunction blocking state mandates limiting attendance at worship services. The justice gave the state until 6 p.m. on December 3 to respond, at which time the justice could make a decision himself or refer the matter to the entire court for a decision.
In another quick-moving case, the 6th U.S. Circuit Court of Appeals has supported Kentucky Democrat Governor Andrew Beshear’s order closing all of the state’s public and private schools, including religious ones, during the current surge in the pandemic. The governor’s closure order, issued on November 18, was challenged by a Christian school in Danville, Kentucky, along with the state Attorney General Daniel Cameron, a Republican. A federal district court judge ruled in favor of the school on November 25, issuing an injunction against the closure order as it related to religious schools. The governor appealed to the 6th Circuit, which blocked the lower court’s injunction on November 29.
The 6th Circuit disagreed with the district court over the issue of whether the governor’s order treated religious and secular entities alike, or differently. The 6th Circuit, which has already ruled in favor of Kentucky churches that were treated differently by the governor’s executive orders earlier in the pandemic, ruled this time that no such disparate treatment was evidenced in this case.
It’s not known at this time whether the school and General Cameron intend to take this case up to the Supreme Court.
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