The First Amendment to the United States Constitution protects the free exercise of religion, which makes it a pretty big deal, even if a lot of us aren’t particularly religious, don’t look to a deity to tell us how to live our lives and, frankly, think people who do are kinda bonkers and dumb, believing in some dead sky zombie.
On the other hand, there’s science, and it tells us that COVID-19 can kill. We’re not all that good with dying, or having our family members die, and so in the scheme of relative values, our concern for protecting ourselves and our loved ones from pandemic is far more important than protecting the constitutional rights of a bunch of zombie-fanatics to congregate, spread disease among themselves and then go forth into the community and infect the rest of us.
It’s not that they don’t get to practice their religion, silly as it may be, but that they don’t get to kill the rest of us while doing so? Is that so hard to understand?
Earlier this year, the court issued two rulings that allowed states to place harsher restrictions on houses of worship than on other indoor gatherings. These cases, which arose in Nevada and California, were decided on 5-to-4 votes, with Chief Justice John G. Roberts Jr. siding with the court’s then-four liberals. The Nevada case was especially infuriating, as the state’s regulations explicitly allowed casinos and other tourist-attracting institutions to host hundreds of more people inside their walls than churches, mosques or temples could welcome in theirs. That ruling effectively said the state can allow residents to worship Mammon while restricting their worship of God.
It’s not just God v. Science, but God v. Casinos. And while the issue never found its way to the Supreme Court, it found its way to Iowa Lawprof Andy Grewel’s twitter.
I can’t believe that SCOTUS is going to allow relatively small, socially distanced religious gatherings. This is the sort of dangerous behavior that thousands of us gathered in the streets to protest.
— Andy Grewal (@AndyGrewal) November 26, 2020
But now that Justice Barrett is on the Court, and the majority shifted from casinos to God, does this portend a future where religious minorities get to undermine the Will of the Woke?
Those worried that this case portends the arrival of religious dogma as the font of the court’s wisdom need not fear. The majority opinion clearly noted that houses of worship were subject to pandemic-related health restrictions just like any other institution; the free exercise clause does not supersede social obligations in an emergency. The court noted that there was no evidence the institutions bringing the case, the Roman Catholic diocese of New York and Agudath Israel, had violated regulations applicable to nonreligious institutions or that gatherings there this summer had led to any outbreak. Instead, the bulk of the court’s opinion focuses on the arbitrary and unequal treatment meted out to religious organizations, and thus reads as much as an application of equal protection clause jurisprudence as it does a defense of the First Amendment.
On the one hand, Free Exercise is an enumerated right set forth in the First Amendment. On the other hand, religion has become a significantly disfavored value among many. This is akin to the Second Amendment, which may be in there, may be held to establish a fundamental right, but a lot of people just don’t like it, don’t like guns for entirely fine reasons and, well, want that right to be denied. And if we were making a list, Free Speech isn’t doing all that well either these days.
I’m not a religious person, any more than I’m a gun guy. But what I am is a believer that we’re constrained to either respect constitutional rights or not. What we cannot do is pick and choose which rights we disfavor at any given time and make them second-class rights, subject to our more popular transitory concerns because, well, that’s just how we feel about them.
Liberals have often defended the court’s jurisprudence as a defense of minority rights against majority tyranny. Barrett’s confirmation shows there is now a court majority that recognizes religious rights are worthy of constitutional protection, too.
Like them or not, religious rights are expressly protected by the First Amendment. This isn’t a debate of whether they’re worthy of protection, whether you agree that people who believe in sky zombies should matter when you’re busy trying to save lives because you believe that saving lives matter more than taking communion.
For quite a while, people cared a lot more about personal safety from criminals, also an existential issue as far as the majority of the public was concerned, over unreasonable searches and seizures. Yet, the same argument applied, that it’s a right set forth in the Fourth Amendment and, if we’re to honor constitutional rights, must be respected.
But religion is different? Once we start elevating or trivializing constitutional rights based on how much we value them at any given moment, none of them are safe. They are served as a bundle, not a la carte, and even the right to free exercise of religion is worthy of protection and our full concern, not because we have some burning desire to go to church this Sunday, with or without a concealed handgun, but because we want to be able to express our views and be safe from the cops breaking into our homes without warrants or soldiers being quartered in the Mencken Guest Wing of Casa de SJ.
You don’t care very much about the rights of the sky zombie folks because you care more about COVID-19? Totally understandable, as you’re allowed to value your personal concerns over those of other people. But then, they’re allowed to care about their values over yours. The difference is that theirs are protected by the Constitution. Honor it not because you agree, but because you expect them to honor the rights you value, and either they all deserve respect or none do.