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Governors Face Constitutional Reality Check

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February 18, 2021

By Jeremy Dys, Special Counsel for Litigation and Communications

As we approach the 12-month anniversary of 14 days to slow COVID-19’s spread, several governors who early in the pandemic were trumpeted as heroes for shutting down their states—including halting religious worship—are facing serious backlash. Once the darlings of national media, each has been chastised by federal courts, their legislatures, or citizens growing weary of temporary restrictions that never seem to end.

California Governor Gavin Newsom now faces a serious recall effort. For almost a year, Newsom declared it illegal for religious Californians to attend church, celebrate mass, go to synagogue, or pray at the local mosque in person. This, while many secular activities such as eating at restaurants, going to shopping malls and Hollywood, has been allowed to proceed. And while the governor himself ignored restrictions he apparently meant only for the public, the public has taken notice.

The Supreme Court of the United States has taken notice too. Recently, justices issued an injunction requiring the state of California to remove its prohibition on any in-person religious gatherings. Justice Neil Gorsuch put it best, “Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner.” Even still, Newsom still seems reluctant to release his pandemic-fueled grip on the throat of civil liberty.

New York Governor Andrew Cuomo is now under scrutiny for attempting to cover up his callous mismanagement of senior New Yorkers living in nursing homes, decisions that led to thousands of deaths. Last week, the courts once again repudiated Cuomo’s leadership as a federal judge permanently blocked his controversial restrictions on indoor worship gatherings—restrictions that the U.S. Supreme Court temporarily blocked last November.

In Kentucky, the state legislature has moved to restrict Governor Andrew Beshear’s emergency powers after he repeatedly overreached, there too restricting religious worship, including outdoor Easter services, and then going so far as to close religious schools.

A year ago, few seriously questioned the temporary, emergency power of the state to curtail our freedom at the outset of this pandemic. We began to face an experience we never had before. But almost a year ago, I wrote to reassure myself as much as anyone, “Church and state have an opportunity to work together to reduce the impact of the virus on our communities while encouraging calm and preserving liberty.” The church wanted to listen to reasonable, science-based restrictions just as much as anyone else.

But governors like Newsom, Cuomo, Beshear, and J.B. Pritzker of Illinois were often loath to hold up their end of the bargain. Time and again, their executive actions made lawsuits necessary to ensure the nation’s houses of worship could provide the calm and confidence our neighbors needed. Rarely was actual scientific evidence introduced to validate the orders.

Not coincidentally, each of these governors targeted the free exercise of religion–religious attendance and worship–despite the clear protections of the First Amendment. While there is no right to shop at Home Depot or go to a casino expressly protected in the Constitution, religious exercise is directly addressed as our first freedom. It should then surprise no one that elected officials who believe themselves to have power to restrict freedoms expressly protected by the First Amendment would go further in restricting other freedoms.

Liberty is not a goalpost to be moved, but a right to be closely guarded. It is impossible to be a self-governed people if leaders pick which freedoms its people will enjoy simply because of their positions of power.

Rather than treat our houses of worship as some sort of social club providing minimal value when compared to television production or liquor stores, we ought to recognize their true value: community centers that provide dynamic, essential services sustaining the heart and soul–and unity–of a nation. It should come as no surprise that during subsequent lockdowns we saw some of the worst civil unrest in our nation’s history.

The time has long passed for any restriction on the free exercise of religion to be legitimately viewed as “temporary.” And if our elected officials can only think too broadly and near-permanently deprive its citizens of their fundamental freedoms, then one wonders whether they can lead at all.

“It has never been enough for the State to insist on deference or demand that individual rights give way to collective interests,” concluded Justice Gorsuch in the Court’s recent decision. “Even in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.”

That is, and must be, the standard to which Governors Newsom, Cuomo and Beshear—and all elected officials—are accountable.

Note: This article was first published on Newsweek and is re-published here with permission. The article presents the main points of an op-ed published in Newsweek. This work was authored by Jeremy Dys. The full article can be found on the Newsweek website, here.

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