The Supreme Court Dealt a Blow to Religious Freedom—But Has Opportunities to Rectify Its Decision

June 5, 2020
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by Jorge Gomez • 8 min read

Last Friday, the U.S. Supreme Court issued a shocking and rare late-night decision that dealt a severe blow to religious liberty, especially right now as our nation confronts overcoming a health crisis that’s now blazing into a full-blown constitutional crisis.

In South Bay United Pentecostal Church v. Newsom—a case in which neither First Liberty nor attorneys from our volunteer network were involved—the Court rejected a California church’s challenge of the state’s new pandemic-related rules on religious services.

In its 5-4 vote, the Court’s opinion on an emergency motion upheld California Gov. Gavin Newsom’s order which singled out places of worship restrictions not imposed on many secular organizations and businesses.

The decision is indeed problematic—and dangerous—to religious liberty for a couple of reasons.

The future of religious liberty in America is at stake, and we must continue reclaiming our First Freedom from the U.S. Supreme Court to our local communities.

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Over the last couple of months, First Liberty has led the fight on the legal battlefront to secure some of the most important victories for religious freedom during the pandemic.

It began with the first major decision, the legal “shot heard ‘round the country” in Louisville, KY, where our attorneys helped reclaim the right of churches to host drive-in services. And we’ve won every one of our legal matters during the COVID outbreak, including our legal team’s success in securing several pioneering legal victories for people of faith to resume Bible studies and in-person religious services consistent with safety guidelines.

But because the lawyers who brought South Bay United Pentecostal to the Supreme Court did so claiming that it was an emergency, the Justices were forced to consider the case in a very difficult posture and limited amount of time, which ultimately led to the poor decision. In short, right when many Governors were actually loosening their restrictions against churches, including the California Governor having just issued a new order pulling back on church restrictions, they asserted an emergency request before the Supreme Court.

It was like tossing a constitutional hand grenade to the Court and hoping it would find a favorable ruling for religious freedom in a matter of seconds.

Under the “crisis mode” and pressures of the “new normal”, the Justices were left to hear the case only at face value. And in times of emergency, the Justices are much more likely to ultimately defer to and uphold the decisions of local officials.

This is what appears to have happened in South Bay United Pentecostal. The Court’s statement notes that in times of emergency, state and local officials are to be granted broad power and latitude to limit citizens’ rights—including religious freedom.

Even though it is not a case on the merits and thus sets no precedent, it is dangerous and creates confusion. That’s why this case, brought forth by a group of local California lawyers, throws a wrench into the mix.

After First Liberty had worked diligently to achieve positive, precedent-setting victories for religious freedom, the Court’s decision now leaves many people of faith confused and worried that state officials can cancel religious liberty arbitrarily under the guise of a health emergency.

Second—and perhaps more shocking—the Court’s opinion doesn’t give the freedom to gather for worship its rightful and special constitutional status, even though this is a fundamental freedom expressly protected by the First Amendment.

Instead of affirming its constitutional priority, the Court essentially said that we are to treat religious freedom (and going to church) like any commercial or social activity, where pros and cons need to be weighed by bureaucrats or politicians when making policy.

Dissenting from the majority opinion, Justice Brett Kavanaugh noted that states shouldn’t be applying a double-standard and onerous restrictions to a religious congregation while not doing so for other secular entities:

“The church and its congregants simply want to be treated equally to comparable secular businesses…The state cannot assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”

This decision is very alarming, as it takes the first and most fundamental God-granted right and practically reduces it to second-class status, equated to any other casual lifestyle choice.

In spite of the setback caused by the opinion, the Justices nonetheless still have ample opportunities in a number of other cases to uphold the primacy of religious freedom in our Constitution—and First Liberty is taking action right now to present the Court with the case and the evidence it needs to reestablish the fundamental right of religious liberty for houses of worship and people of faith.

SCOTUS Has Several Opportunities to Reaffirm Religious Freedom

There are a number of religious freedom cases currently pending with the Court, and that means it can still remedy the damage done by its most recent ruling. 

One of those cases is Fulton v. City of Philadelphia, in which the Court will decide whether the government can ban Philadelphia-based foster agency Catholic Social Services and other religious organizations from serving children and families because of their religious beliefs about marriage.

Just a few days ago, First Liberty Institute filed a friend-of-the-court brief in this case on behalf of Galen Black, a plaintiff from the landmark 1990 Supreme Court case Employment Division v. Smith. That ruling from the Supreme Court reshaped the First Amendment landscape and reduced religious liberty protections for people, like Black, whose religious beliefs are burdened by generally applicable laws.

In our brief, First Liberty attorneys argue that government should ensure religious adoption providers can continue their centuries-old work serving families and children without suffering government discrimination because of their beliefs.

Additionally, the Court is likely to announce decisions this month (June) on three critical religious liberty cases, which our team of experts has discussed at length and provided insights as to what those will mean for the future of religious freedom in America.

Right now, America is in a battle for the freedoms and values that have long been central to the greatness of our country.

From the Supreme Court to the local level, this is the time when we need to double down to win in the courtroom. After all, if churches and houses of worship can’t win in court—if our faith falls from being our First Freedom to becoming a “second-class” right—or no right at all—then every other freedom we hold dear is in jeopardy, too.

That’s why as we enter into the end of our fiscal year, we’re inviting you to go All In, Together, to help reclaim the rights of people of faith, churches and religious communities across America.

Please consider making an urgent, timely gift right now to First Liberty.

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