It's No Mistake That Our First Freedom Is Religion
By: Andrew Napolitano
Freedom of religion and the free exercise there of are not conditional rights that some snobby secular progressive can sit on high and modify to their liking. It is in fact an inalienable first and foremost premiere right as a human being and as anAmerican citizen. Governors and mayors have been wrongly abusing believers during this pandemic.
S E E D E D C O N T E N T
" But even in a pandemic, the Constitution cannot be put away and forgotten. "
— Supreme Court of the United States, November 25, 2020
When teaching law students about the Bill of Rights, professors often ask on the first day of class which is the first freedom protected by the First Amendment.
The students invariably answer, "freedom of speech."
It is not.
If the Framers were trying to tell us which freedom is the first among equals, they did so by listing the religion clauses ahead of the freedom of speech.
The religion clauses prohibit the government from respecting the establishment of religion and from interfering with its free exercise.
This is not an academic issue. Recent events have demonstrated that the free exercise of religion is as threatened today as it was in 1791 when the First Amendment was ratified.
Numerous state governors have targeted the free exercise of religion in their multifaceted assaults on personal liberty in the name of public safety. Last week, the Supreme Court put a stop to one of them.
Here is the backstory:
Andrew M. Cuomo is the governor of New York.
He has been foremost among his gubernatorial colleagues in his ubiquitous television explanations of his various executive orders restricting personal liberty during the COVID-19 pandemic.
He even won an Emmy for his hundreds of television appearances during which he educated the viewing public on his understanding of the science behind the pandemic.
He attempted to educate the public, as well, on his understanding of the Constitution.
That understanding is wanting.
Cuomo established a color-coded system to indicate the severity of the COVID-19 infection rate by ZIP code.
Red is the most severe and calls for limiting worship to 10 people per indoor venue. Orange is the next level, and it limits worshippers to 25.
Since the governor did not deem the right to worship as "essential," even though he deemed campgrounds and bicycle, food and liquor shops to be essential, he imposed his 10- or 25-person limit on all houses of worship, irrespective of the size of the venue.
He imposed no numerical limitations on essential venues.
Thus, a small mom and pop liquor store could be packed to the gills with customers, but a 400-seat synagogue or a 1,200-seat cathedral would still be limited to 10 or 25 people.
This was such an interference with the free exercise of religion that the Roman Catholic Diocese of Brooklyn, New York, and three Jewish congregations in New York City collectively sued the governor in federal court in Brooklyn.
They lost.
Last week, the Supreme Court interceded in a splendid 5 to 4 decision that defended religious liberty in the face of government efforts to sweep it aside.
The court recognized that the right to worship is fundamental — and has been the law of the land for many generations.
Yet, its characterization as "fundamental" was a shot across the governor's bow because, whatever he considers the freedom to worship to be, he ordered that it was not essential.
The court held that by failing to characterize it as essential, while characterizing other choices as essential, Cuomo demonstrated a hostility to religion.
Stated differently, if having more than 10 or 25 people in a large synagogue or church is likely to harm public health, then why is having 500 people in a Walmart or folks packed like sardines in a liquor store not likely to impair public health?
Because the religion clauses are articulated in the First Amendment — and because the freedom to worship is a natural right — the government can only interfere with them by meeting a demanding jurisprudential test called strict scrutiny.
This mandates that the government must have a compelling state interest it is attempting to serve by the least-restrictive means.
It also means that a fundamental right cannot be targeted when other rights that may or may not be fundamental are left to individual choices.
The Supreme Court's ruling, which was released at 2:12 a.m., was a response to an emergency application. After the plaintiffs lost at the trial court, they asked the trial judge to enjoin the governor during the pendency of their appeal so their congregants could worship during the coming holidays.
The court declined.
Then the plaintiffs asked the U.S. Court of Appeals for a temporary injunction until that court could hear their appeal.
It declined.
Then the plaintiffs threw their Hail Mary pass and asked the Supreme Court to enjoin Cuomo during the pendency of their appeal.
That pass ended up being a touchdown with no time left on the clock.
The Supreme Court not only issued an injunction preventing the governor from limiting the number of worshippers at the religious venues that sued, but it did so in such sweeping, liberty-embracing language that will surely apply to all religious venues in the land.
Reading the court's decision, and particularly the thoughtful and brilliant concurrence by Justice Neil Gorsuch — who wrote that "government is not free to disregard the First Amendment in times of crisis" — one can see that Cuomo lost this case because while he may understand the science, he does not understand the jurisprudence.
Freedom of religion is not the first freedom by mistake.
It was the judgment of the Framers that this freedom is as essential to human fulfillment as are any other free choices that free people make.
By failing to recognize that natural, historic and jurisprudential truism, N.Y. Gov. Andrew Cuomo doomed his executive order to the ash bin of history.
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in the history of New Jersey. He sat on the bench from 1987 to 1995. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year. He is Fox News’ senior judicial analyst on the Fox News Channel and the Fox Business Network. He is the host of “FreedomWatch” on the Fox Business Network. Napolitano also lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He has been published in The New York Times, The Wall Street Journal, The Los Angeles Times, and numerous other publications. He is the author of five books on the U.S. Constitution. Read Judge Andrew P. Napolitano's Reports — More Here .
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All religions are equal in the USA. As to the SCOTUS ruling, ACB needs to be removed ASAP for lying. She clearly said that her personal religious views would never influence her professional decisions yet, she did exactly that.
Freedom of religion is not unlimited. It cannot supersede an individuals civil rights. Kim Davis is a perfect example of that.
Seems like someone is conflating freedom of religion with freedom of public assembly.
Public assembly is a freedom but government can (and does and should) impose restrictions on same based on mitigating factors. Like, for example, a pandemic.
Exactly. No one is stopping people from their beliefs. People have prayed and practiced their religions long before a building to do it in existed. Jesus never used a church. He spread the word. Now what is getting spread with people crammed into churches like sardines is a deadly virus.
He didn't use Christian church buildings because they didn't exist yet. However he did preach in the temple, and that house of God was central to their religious community. It is more important to understand that church is not just a building; it's a community, and it is an important component of religious practice to meet in groups. Jesus called people to come together.
Tacos,
In Judaism, you don't need a Syngagoge to pray, so the fact that Jesus used it was to make a point to the Jewish community. His sermons given outside were equally worthy.
Of course. I don't think I suggested they weren't. I was responding to the apparent contention that religious people don't have a religious need to meet as a group; that it's not really part of religious exercise or belief; and we should just get over it and worship by ourselves individually in isolation. My church meets outside (and online), but we meet - for multiple reasons, some of which are found in scripture as well as tradition.
Restrictions on such freedoms must overcome strict scrutiny, and these clearly did not.
The seeder, as always, is arguing that this is religious persecution. The failure of select authorities to produce perfect restrictions capable of overcoming strict scrutiny (I think that is impossible by the way) does not mean religious persecution.
Rather, it means blunt force instruments rather than surgical precision.
In a pandemic situation not everyone is going to be happy. Christians crying persecution in the USA in not impressive; especially since many others in this situation suffer far worse than inconvenience due to restrictions (e.g. loss of their businesses).
Perfection is not required. The regulation must be narrowly focused and employ the least restrictive means.
It is supposed to be difficult. Very difficult. When strict scrutiny is called for, the government usually loses - that's by design.
Neither are people of color who cry "racism" all the time, or women who see "sexism" everywhere, but these things exist all the same. Is it the worst possible example of it? Of course not, but it's still real.
Justice doesn't shut down just because you can find or imagine someone who has it worse.
And doing that to satisfy the scrutiny of everyone is likely impossible. I would prefer the restrictions be custom fit too. But the mere fact that they are not does not mean religious persecution.
There are all sorts of bogus complaints. Let's just stick with the one at hand: cries of religious persecution.
But the whining about religious persecution is placed in context by my noting how these restrictions ALSO hurt others far worse.
With all the freedoms offered to religious organization in the USA, Christians in this nation complaining about religious persecution are like billionaires complaining of paying taxes.
I doubt you can measure whether or not someone is hurt "worse."
In any event, the case deals with the parties and facts at bar. There is no justice is deciding the matter based on whether or not someone else is hurt worse. If someone else is being hurt, and such hurt violates a constitutional right, they are free to seek redress in the courts. That is its own conversation. Confirming constitutional rights in this case is justified on its merit, and does nothing to make anything worse for others.
Sure I can, in the example given:
The business owner experiences a far greater pain.
That was never my point. My point is that crying religious persecution because regulations have not been well conceived for churches is conspiracy theory in a nation where religious organizations are traditionally granted all sorts of exceptions. Like billionaires whining about being taxed.
In your opinion. Some would place the health of the soul or the mind above that of a business. There is no objective way to measure the comparative harm. And in any event, it’s not relevant to whether one party or the other has the right to a remedy in court.
That is simply not relevant to justice under the law. A right exists. It was infringed in violation of the law. You don’t get to deny justice to people based on the assertion that they generally have things pretty good otherwise. We might just as well deny freedom to African American slaves because they lived in better homes or ate better food than they would have in Africa.
Furthermore, you say religions have it good, so they should put up with this particular restriction. Tomorrow it will be some other restriction. Next week another one. And our rights gradually slip away because each one was just a little inconvenience compared to the situation some place else.
I’ll tell you something about that. It’s only a little thing when it doesn’t affect you personally. That’s true for so many things.
Not in yours? Really?
You do not think people are able to worship without going to church? The churchgoers will be inconvenienced for a short period of time. The business owners have lost their businesses. For many (smaller owners) that typically means bankruptcy or at least near financial ruin.
And nowhere have I suggested that. Tacos! stick with me here. I have always (including here) held the position that churches should be subject to the same principles of safety as all others and that necessarily means considering their venues and floor plans. Specifically, if a church can maintain a 6' social distance and will enforce precautions such as masks, ventilation and cleanliness then they should be able to operate just as a similar public venue which involves a lot of people who are raising their voices in an enclosed area (e.g. a bar).
Nowhere have I argued that churches should be treated unfairly. What I have stated is that the blunt force rules which have affected churches are not a conspiracy against religious organizations ... an attempt to take away religious freedom. And I have punctuated that with the observation that in the USA religious organizations enjoy an exceptional freedom — especially if Christian.
You are veering away from what I have stated and the points I have made into claims I have not made and positions that I do not hold. I hope that I have made that clear in this post.
It's not my place to tell other people what should be important to them in their lives. I am a religious person, but I don't agree with a lot of the priorities other religious people have. That doesn't mean I think it's ok to dismiss their beliefs. I defend their right to beliefs I disagree with.
Never said that. But again, what you or I think people need to worship isn't relevant.
It's much more than an inconvenience for some people. For some people, it's everything.
As I have said, "other people have it bad, too" is not a relevant argument. By the way, many business owners are going to court, too.
You keep bringing up how other people are suffering in different situations. Therefore, it's logical to assume you think it's an important metric. If you don't then you should stop bringing it up. It makes no sense.
The fact is our society, our government, and our legal system are rooted in the concept that certain rights are more deserving of extreme protections than others. Is that fair? Maybe not, but it's our system.
And I didn't say you did.
If churches are being limited to 10 or 25 people regardless of building capacity (which appears to have been the case), when others are not, then they are being treated unfairly.
Whether a conspiracy exists or not is not something I have claimed, nor is it legally relevant in this case. You seem to be making the presumption that when religious groups go to court to defend their rights, they are engaging in irrational conspiracy mongering. That is simply not the case here. It could be in some cases, but I see no evidence of that here.
Government regulations that infringe on the free exercise of religion might be intentionally anti-religion, but they need not be to be unconstitutional. Sometimes anti-religious bias may simply take the form of not prioritizing the protection of religion as the Constitution demands. Or it may be a completely benign oversight. It doesn't matter in this case.
The religious plaintiffs have a right to seek protection in the courts just like anyone else. I don't think they deserve to be demonized as conspiracy nuts because they do so.
We are not talking about dismissing beliefs. This is about being inconvenienced regarding attending church services versus going out of business.
Likely so. They should not be treated unfairly. Not the point. Never was.
Well that is what I have been talking about.
Nope. I responded to this from the seeder:
The seeder holds the position that the restrictions on churches is part of a power play using the pandemic as an excuse.
Yes, MAGA, never was. If you had read what I have written, I have never made the point that houses of worship should be treated unfairly. In fact, I have always argued the opposite (well beyond this article). In fact, I have stated same directly to you several times.
So, yeah, really.
My point in this context is that the mere fact that regulations were too coarse and did not appropriately consider the special venue and activities of the various churches, synagogues, etc. does not mean that government officials are making a power play on same using the pandemic as an excuse.
I have argued against your conspiracy theory, not for treating houses of worship unfairly.
See? Read rather than presume or invent.
Of course, parroting.
No surprise there.
I don't know what you think you are talking about, but when you characterize the restriction on a sincerely held religious belief as
Then you are dismissing it, whether you like me calling it that or not.
You keep trying to interject this comparison. I keep trying to remind you that this comparison was not the case before the court and is not legally relevant in the case. I'll say it for one last time: it's irrelevant.
Again, I don't know why you keep saying this. In court, it was the point.
Honestly, it's hard for me to believe this case was even controversial. I think you have to have some level of anti-religious bias to just assume with little or no evidence that the restrictions on these churches were either fair, or were a scientifically reasonable response to the pandemic.
This is not to say there is no risk in an indoor church service. There clearly is. But if Walmart can function at 50% of the building's capacity, surely churches can have a similar restriction instead of limiting it to 10 or 25 people. Arbitrary and extreme regulations only feed into the distrust and resentment so many have for government right now.
Having thoroughly and repeatedly explained my position, I am not inclined to do so yet again. Clearly you refuse to acknowledge it.
You want to focus on points that are not in contention. If we agree on something (and always have) there is no point to pretend as though we do not.
But it was not the point I made. Hello? You do not have the luxury to change my point for your own convenience. If you do not wish to discuss / debate the point I made that is fine with me. But trying to focus on a point I have not made as if I had made it is not okay.
We can debate the points of disagreement. But there is really no point in your making statements that I have never disagreed with and present them as if I had disagreed. Right? Pointless and silly is it not?
So, just to be clear, I have always (well before this seed) maintained that it is not right to treat houses of worship unfairly — to have them subjected to rules that are in principle not the same rules as others are subjected to.
Do you understand that the above ⇡ is quite different from my argument that simply because the rules were coarsely applied and arguably inappropriate does not mean that government officials are using the pandemic as a power play against religious organizations.
⇡ My point. ⇣
Stated earlier in what seems to be clear language:
Well I will leave Newsom in your and Tacos! hands. He is your problem.
Parroting the words of others is pointless. When challenged the parrot runs away, unable to defend the words it parroted because it lacks the understanding of the author whose words it merely copied.
Good luck with your governor.
You do not understand the concept of threads yet?
There are points that are made in discussions that stem (spawn) from the topic. I made one of those.
In fact, my comment focused on your editorial comment about the seed.
Are replies to this ⇡ off topic? (Answer: no)
That and I would add intellectual cowardice too.
Does not matter what you care about. This site allows us to comment on aspects of the topic and, certainly, on seeder editorials.
And also on seeder BS!
My point was in direct response to your editorial. If you cannot stand rebuttals for which you have no defense think more carefully about what you write.
Your editorial comments. I quoted them already.
Here, MAGA, this is what you wrote:
These are comments in the body of the article which precede the content of the seed. These are editorial comments from you (the seeder).
Buy a vowel:
Now you are moving the goal posts and ignoring the fact that I am against unfair treatment of churches.
Buy another vowel.
So here is where we stand. You have tossed out several allegations/complaints and you have been proven wrong on each count.
Instead of just tossing out allegation after allegation I recommend thinking about what you write before you post it. Make sure you can defend your allegation before making it public.
It is so much easier to debate if you take a position that is correct or at least can be well defended.
You are not even reading what I write so why reply? I have stated repeatedly that places of worship should be subjected to the same principles as every other venue.
I am not going to explain this to you again since nothing sinks in. Like I said, your governor is your problem. Good luck.
Freedom of religion includes the freedom to not be religious