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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A Masterpiece of a Case

When there is a major advance in civil rights for a minority group that has been widely discriminated against, do people have the right to dissent with the new standard? Should individuals and businesses be treated the same with respect to the fundamental rights protected by our Constitution? Are artists, artisans, and other craftsmen exercising their free speech rights when they create custom works for paying clients in the normal course of business? Where does society draw the line when it comes to sincerely-held religious beliefs? And how, if at all, is racial discrimination different than discrimination based on sexual orientation? All of these critically important societal questions are deeply integrated in one of the most widely discussed and anticipated Supreme Court cases of this term, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

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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 »