Pandemic Restrictions & Religious Freedom

Why the Supreme Court got it right in overruling California’s draconian lockdown rules.

The United States has been dealing with the COVID-19 pandemic for over a year now. Some states — including my own, New Jersey — have been in varying stages of lockdown or otherwise heavily restricted for many of those past 365 days. California is a perhaps the exemplar of this lockdown approach, having drastically curtailed civil rights for millions of its citizens under the guise of Governor Gavin Newsom’s “emergency powers”. Just a week and a half ago, those restrictions — in California and by proxy elsewhere — were dealt a crushing blow by a majority of the Supreme Court. Much of the coverage of this important decision has been framed negatively, focusing on the religiosity of the petitioners, the fact that the decision was a split one, or decrying the Court’s ‘new direction’ after the death of Justice Ruth Bader Ginsburg. Some pundits have even gone as far as claiming that the Court’s decision “Doubles Down On Religious Rights Amid Pandemic,” or that the majority had ulterior motives for its decision, as they are all “ultraconservatives” whose decision “may kill people”. This is all utter nonsense. The Supreme Court absolutely made the right decision in this case when it comes to religious rights under the First Amendment and the government’s power to curtail them in times of crisis.

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The Blessings of Liberty

Two-hundred and forty-four years ago today, fifty-six brave men took their lives in their own hands and signed their names to a document almost unprecedented in human history. The Declaration of Independence is a profound statement of Enlightenment principles and has guided the progress and development of human rights and liberal constitutionalism in this nation and across the world. Our nation, and the men who founded it, did not always live up to the lofty principles espoused in our founding documents; chattel slavery, forcible relocation of Native American tribes, Jim Crow, and Japanese internment all are examples of horrendous episodes in which we fell short of those ideals. But to abrogate them entirely because of past hypocrisy or failure is a fool’s errand. In 2020 America (despite all of its flaws), we can say what we wish without fear of government action, worship (or not worship) however we please, advocate for our favored policies without concern for our liberty, and defend ourselves to the fullest extent possible. No matter who resides in the White House, who controls the Congress, or who sits on the Supreme Court, our natural rights remain protected from the avarice or evil of those who would wish to deny us them. In no other society on earth does the individual have more control over his own choices in life, personally, politically, and professionally. We live in the most prosperous, liberal, diverse society that has ever existed in human history; it would do us well to remember that and to see ourselves as lottery winners in a broader world full of tyranny, slavery, and oppression. The United States of America has been a shining city on a hill not only because we have grand ideals of freedom and liberty, but because we have worked incredibly hard over myriad generations to fully embrace and fulfill the promises of the founding. Let us as Americans continue that worthy mission and move our great nation even closer to the full flowering of liberty. Happy Independence Day.

III. “The Only Remedy to be Applied is More Speech”

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

–   Justice Louis Brandeis, Whitney v. California


Before getting into the meat of this section, I have a simple question for you to consider: since the defeat of the Third Reich in 1945, has the United States or any American state ever been governed by a party or individual that has openly espoused fascist or Nazi ideology?Read More »

II. “Particularly Controversial or Unpopular Entities”

“It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today.”

ACLU Statement, August 2000


Now that I’ve gone through a less-than-concise legal history of the First Amendment in the 20th Century, let’s talk about an organization that has made its own impact on the popular understanding of free speech and assembly in the United States: the American Civil Liberties Union, or ACLU. Read More »