The Supreme Court ruling reinstating free expression clause of First Amendment is harsher than you have read.

First Amendment of the US Constitution text. Image courtesy of Adobe Stock.

Don’t know what you have read of the Supreme Court decision that has restored the free expression clause to the First Amendment of the U.S. Constitution.

This ruling is significant because SCOTUS has issued three additional temporary injunctions citing this specific ruling when ordering the District Court to reconsider their incorrect decision.

Several sentences in the ruling have been widely quoted.

After reading the full decision, I realize it is stronger than I realized. Harsh even.

I have brought plenty of sarcasm and ridicule to bear discussing the attacks on the First Amendment willfully carried out by many politicians and public health officials. My point-and-laugh-out-loud efforts pale in comparison to comments from the ruling and several concurring arguments.


Link to the text can be found at No. 20A87 with the actual text found here.

I will quote a large number of the specific comments in the ruling with a few of my observations

Comments from unsigned opinion:

Some background:

The two applications, one filed by the Roman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated entities, contend that these restrictions violate the Free Exercise Clause of the First Amendment, and they ask us to enjoin enforcement of the restrictions while they pursue appellate review. Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities.

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.

Because the challenged restrictions are not “neutral” and of “general applicability,” they must satisfy “strict scrutiny,” and this means that they must be “narrowly tailored” to serve a “compelling” state interest.

Not only is there no evidence that the applicants have contributed to the spread of COVID-19 but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches immediately affected by the Executive Order can seat at least 500 people, about 14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to 400. It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows. (emphasis added)


Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure. (emphasis added)

Look at that again:

But even in a pandemic, the Constitution cannot be put away and forgotten.


The restrictions … strike at the very heart of the First Amendment’s guarantee of religious liberty.

Let me put it another way:

  • Politicians and public health officials are not allowed to ignore the Constitution because it gets in their way of their agenda.
  • Also, the plans of those same politicians and public health officials are a direct attack on religious freedom.

More comments from the ruling:

The dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants may hold services at 50% of their maximum occupancy. The dissents would deny relief at this time but allow the Diocese and Agudath Israel to renew their requests if this recent reclassification is reversed.

There is no justification for that proposed course of action. It is clear that this matter is not moot. … And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. …The Governor regularly changes the classification of particular areas without prior notice. If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained. … The applicants have made the showing needed to obtain relief, and there is no reason why they should bear the risk of suffering further irreparable harm in the event of another reclassification. (emphasis added and footnote removed)

Let me rephrase that paragraph.

The Governor removed the restriction in advance of the ruling and can reimpose it at his whim.  Churches could suffer additional weeks of irreparable harm.


From concurring opinion of JUSTICE GORSUCH

Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. … Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles.

Today’s case supplies just the latest example. …(I)n the Orthodox Jewish community that limit (i.e.of 10 people) might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum. … Churches and synagogues are limited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and synagogues, which ordinarily hold hundreds.

Rephrased:  A lot of state governments are trashing the Constitution. In New York, the governor is effectively banning worship by Orthodox Jews.

At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?

So hardware stores, acupuncturists, liquor stores, bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents can go full steam ahead.  How about worship? No.

…The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids. (emphasis added; italicized “that” is in text.)

In case you missed it, that means the Governor’s actions blatantly, intentionally, willlfully, directly discriminate against the First Amendment.

Justice Gorsuch then pointed out the concurrence by one Justice in the South Bay Pentecostal Church v. Newsom does not apply. It is not only nonbinding and expired, it is far past time for the actual constitution to apply:

Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause. (emphasis added)

Not only did the South Bay concurrence address different circumstances than we now face, that opinion was mistaken from the start. …

Oh yeah. That means South Bay decision was also wrong. So, it was from merely one Justice, nonbinding, expired, and wrong.

Ouch. That’s gotta’ hurt.

Justice Gorsuch then shreds the argument that the Jacobson case has any relevance or applicability to the current situation. Too much detail to mention here, but if that case registers for you, please see the concurrence for complete devastation of that case as precedent.

Check out the scorching comments in this paragraph:

Why have some mistaken this Court’s modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do. (emphasis added)

No wonder the Chief Justice spent three paragraphs in his dissent responding to the overall ruling and that comment. Half a page of salve isn’t enough to ease the burn from the majority decision.

Every politician and public health official should be hit over the head with this sentence until they decide to honor their oath to support and defend the Constitution:

..we may not shelter in place when the Constitution is under attack.

Check out the governor’s bad faith described in this paragraph:

…Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.

In essence, the Justice has accused the Governor of dishonesty, working to avoid accountability for his shredding of the Constitution. The Justice has accused the Governor of bad intent to evade any ruling from the Court.

The conclusion, which should be mailed directly to every elected politician in the country and every supervisor in every public health agency in the country:

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.

Read that paragraph again and ponder:

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques. (emphasis added.)


There is no world in which the Constitution tolerates

full operation of bike shops

but shuts down, closes, stops, shutters religious worship.


From concurring opinion by JUSTICE KAVANAUGH.

Moreover, New York’s restrictions on houses of worship not only are severe, but also are discriminatory. … (T)hose caps do not apply to some secular buildings in the same neighborhoods. In a red zone, for example, a church or synagogue must adhere to a 10-person attendance cap, while a grocery store, pet store, or big-box store down the street does not face the same restriction. In an orange zone, the discrimination against religion is even starker: Essential businesses and many non-essential businesses are subject to no attendance caps at all.

In a red zone, pet shops have no limits while every place of worship is limited to 10 people.

The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions. … (O)nce a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class.

The Constitution does not allow creating a favored class and then defining religion outside the favored class. That is anti-religious, anti-constitutional discrimination on its face.

More scorching comments:

…But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised. (emphasis added)

… To reiterate, New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, … And New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.

“Wholesale judicial abdication.”

“Restrictions discriminate against religion.”

Wow. No ridicule or laughter I bring against the constitution shredding politicians can come close to the harshness of Justice Kavanaugh’s concurrence.



… After the Diocese and Agudath Israel filed their applications, the Governor revised the designations of the affected areas. None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions.

… The Governor might reinstate the restrictions. But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications.

In other words, the Governor could reinstate the restrictions at any time.

If that happens, the Diocese and gathering of Orthodox Jews can just go ahead and incur the cost of refiling their case, work through the District Court, Appeal Court, and arguments in front of the Supreme Court yet again.

How many tens of thousands of dollars would that cost? That doesn’t seem to be important.

Also, the large numbers of Christians and Jews affected can do without their religious freedoms for the days or weeks it would take to get to a SCOTUS ruling. No matter. That burden doesn’t carry much weight.

Religious freedom just doesn’t seem to be that important. It’s not like it is in the Constitution or something.


From dissent by JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN joining.

For one thing, there is no need now to issue any such injunction. Those parts of Brooklyn and Queens where the Diocese’s churches and the two applicant synagogues are located are no longer within red or orange zones. …

Instead, the applicants point out that the State might reimpose the red or orange zone restrictions in the future. But, were that to occur, they could refile their applications here, by letter brief if necessary. And this Court, if necessary, could then decide the matter in a day or two, perhaps even in a few hours. …

Same argument as the Chief Justice.  If in his unilateral whim the governor reimposes the restrictions, the churches and synagogues can refile and re-appeal their cases. They can incur the costs again, wait days or weeks, and continue to have their religious freedom banned in the meantime.

Oh, but the court will move really fast next time. Promise.

Dissent continues with another five paragraphs arguing the health risks outweigh the Constitution. Plenty of discussion of precedent and process but not one mention of the First Amendment visible in the five paragraphs.


From dissent by JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins.

To my untrained pea brain, looks like the dissent rejects the strict scrutiny concept and applies the reasonable analysis standard.  In contrast to the majority opinion, the dissent points out that some activities, such as concerts or museums are treated more harshly than worship which means churches may not insist on strict scrutiny.

The dissent does not even mention that favored classes (big-box stores, bike shops, acupuncturists) exist. Thus the dissent does not consider there are favored classes treated better than worship.


I hope you can see from these quotes that the ruling is clear and powerful. In a sentence, the constitution may not be ignored or thrown away even in a pandemic.

Dissents are weak and just don’t seem to place importance on religious worship, or precedent, or ‘strict scrutiny’, or even the Constitution.

Finally, I shall no longer be uncomfortable bringing ridicule and laughter into defense of religious freedom.  The Supreme Court has already been more harsh that anything I could ever say.

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