Governments are finding it harder to shut down churches, and this has Democrats and liberal commentators worried.
The House Judiciary Committee held a hearing earlier this week in which at least three Democrats fretted about recent Supreme Court rulings that seemed to expand the freedom to exercise religion.
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“They created a mess here,” California Rep. Zoe Lofgren said of the Supreme Court and its ruling in South Bay United Pentecostal Church v. Newsom. “And the mess is really serious because the virus can kill people.” The court had struck down arbitrary rules that totally barred indoor church services, among other gatherings.
The free exercise of religion, like the freedoms of speech and assembly, are explicitly protected (favored, in fact) in the Constitution and federal law. Justice Neil Gorsuch has consistently pointed out that law requires governments not merely to tolerate the exercise of religion, but to accommodate the exercise of religion. That is to say, religion is more important than other priorities and even other rights.
This is the opposite of a prevailing view on the American Left, which is that religion has fewer rights than other concerns in the public square.
Liberal commentators have worried that the conservative court reads the First Amendment and other religious liberty guarantees too broadly. If the ruling in South Bay became precedent, frets one commentator, “it would provide religious institutions with an exemption from some facially neutral generally applicable regulations.”
This is “an ominous sign” worried Leah Litman at the Appeal in December after the Supreme Court ruled that Gov. Andrew Cuomo couldn’t go around shutting down churches as part of his Red Zone/Orange Zone lockdown campaign. Litman’s argument was largely procedural, as were the arguments at the House Judiciary Committee earlier this week, but we know there is a real appetite to go after churches and other religious institutions.
The ACLU wants to force Catholic hospitals to abort their patients. Conscience protections are consistently demeaned as a “license to discriminate.” Newspapers often put the words “religious liberty” in scare quotes, as if it’s not a real thing.
This will be a major battle of the coming years, with a Democratic-controlled Congress and executive branch and a conservative-majority Supreme Court. Expect Democrats to wage unprecedented attacks on free exercise, and expect the Supreme Court to build unprecedented fortresses around it.
