Supreme Court Justice Samuel Alito sounded an alarm about government officials who have exceeded their legal authority, in the guise of protecting public safety during the Covid-19 pandemic, by practicing ?lawmaking by executive fiat rather than legislation.? During a 30-minute video address to a virtual version of the annual convention of the Federalist Society, Alito condemned the imposition of unwarranted Covid restrictions on members of various religious communities seeking to exercise their constitutional right to practice their religious beliefs by joining together to participate in public prayer.
Citing specific examples of how these arbitrary restrictions have impinged on individual rights and liberties, Justice Alito said, ?Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings. Think of worship services, churches closed on Easter Sunday, synagogues closed for Passover and Yom Kippur. Think about access to the courts, or the constitutional right to a speedy trial [during a period of time in which] trials in federal courts have virtually disappeared in many places.?
Alito who was nominated to the Supreme Court by President George W. Bush 15 years ago, was careful to note that he was ?not diminishing the severity of the virus? threat to public health? or passing judgement about ?whether any of these restrictions represent good public policy,? while warning that, ?the pandemic has resulted in previously unimaginable restrictions on individual liberty,? encroaching on the guarantees of the Bill of Rights.
COVID CRISIS A CONSTITUTIONAL STRESS TEST
?The Covid crisis has served as a sort of constitutional stress test and in doing so it has highlighted disturbing trends that were already in evidence before the pandemic struck,? Justice Alito added. He declared that it is an ?indisputable statement of fact? that ?we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020. . . Whatever one may think about the Covid restrictions, we surely don?t want them to become a recurring feature after the pandemic has passed.?
Alito also observed that the extension of executive authority as a substitute for formally passed new legislation has been a growing trend in the federal government for a long time. ?Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people?s elected representatives. What have we seen in the pandemic [is] sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion,? the associate Supreme Court justice said.
Alito was speaking to a sympathetic audience of conservative lawyers. The Federalist Society, which was co-founded by the late Justice Anton Scalia and is dedicated to his conservative legal philosophy of ?originalism? and ?textualism.? Over the past four years, the Federalist Society has been designated by President Trump to vet his three nominees to the Supreme Court, and to select more than 200 reliably conservative judges to fill lower court vacancies on the federal bench,
RELIGIOUS LIBERTIES UNDER SIEGE
Justice Alito then made a direct connection between the unconstrained expansion of executive authority in the name of suppressing the pandemic to its disproportionate application to houses of worship, with the practical effect of restricting the individual?s right to practice their religious beliefs. ?Just as the COVID restrictions have highlighted the movement toward rule by experts, litigation about those restrictions has pointed up emerging trends in the assessment of individual rights. This is especially evident with respect to religious liberty. It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored, right,? Alito lamented.
He was particularly critical of the rulings in two Covid-related cases in which the Supreme Court permitted arbitrary restrictions imposed by California and Nevada on the size of religious gatherings to stand. In May, the high court rejected an emergency appeal by a California church challenging attendance limits at worship services. The justices turned away a similar challenge by a Nevada church in July. In both cases, the court divided 5-4, with Chief Justice John Roberts casting with the deciding vote, siding the court?s liberals in upholding the state restrictions.
The Nevada and California complaints were similar to lawsuits brought jointly by synagogue and church leaders against Governor Andrew Cuomo of New York and Governor Phil Murphy of New Jersey, for imposing Covid-inspired occupancy limits on their churches and shuls which were much stricter than the limits imposed on businesses and other secular venues.
NEVADA CASINOS FAVORED OVER HOUSES OF WORSHIP
In his speech, Alito went into some detail in explaining how the governor of Nevada used his legal powers under state law to protect its citizens in an emergency to advance his personal ideological agenda, which, in this case, was to place unnecessarily onerous occupancy restrictions on Nevada?s houses of worship.
?Under that law, if the governor finds that there is, ?a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population.? To say that this provision confers broad discretion would be an understatement,? Alito observed.
He went on to explain, ?Giving an official so much discretion can of course, be abused. . . All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.?
Alita was disturbed that in both the Nevada and California cases, the Supreme Court allowed the discrimination against the houses of worship to stand. ?The only justification given was that we should defer to the judgment of the governors because they have the responsibility to safeguard the public health. Consider what that deference meant in the Nevada case. After initially closing the state?s casinos for a time, the governor [Democrat Steve Sisolak] opened them up and allowed them to admit 50% of their normal occupancy, and since many casinos are enormous, that is a lot of people. Not only did the governor open up the casinos, he made a point of inviting people from all over the country to visit the state.
?So if you go to Nevada, you can gamble, drink and attend all sorts of shows. But here?s what you can?t do. If you want to worship and you?re the 51st person in line, sorry, you are out of luck. Houses of worship are limited to 50 attendees. The size of the building doesn?t matter. Nor does it matter if you wear a mask and keep more than six feet away from everybody else. And it doesn?t matter if the building is carefully sanitized before and after a service. The state?s message [in imposing that arbitrary restriction] is to forget about worship and head for the slot machines, or maybe a show,? Alito concluded.
FIRST AMENDMENT BEING IGNORED
?Deciding whether to allow this disparate treatment should not have been a very tough call,? the Supreme Court justice declared. ?Take a quick look at the Constitution. You will see the Free Exercise Clause of the First Amendment which protects religious liberty. You will not find a [dice] clause or a blackjack clause or a slot machine clause. Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship. But the court nevertheless deferred to the governor?s judgment, which just so happened to favor the state?s biggest industry and the many voters it employs,? Alito observed sarcastically.
Alito said that in both California and Nevada, the restrictions had ?blatantly discriminated against houses of worship? in violation of the freedom of religion guarantee in the First Amendment of the Bill of Rights, and he warned that ?religious liberty is in danger of becoming a second-class right.?
Alito compared the pressures that religious Jews, Christians and Muslims face today for seeking to practice their religious beliefs to the harsh restrictions occupying U.S. military forces placed on the citizens of Germany and Japan in the immediate aftermath of World War II.
GROWING INTOLERANCE FOR RELIGIOUS BELIEFS
?Is our country going to follow that course?? Alito asked. ?For many today, religious liberty is not a cherished freedom. [Opponents of the individual?s right to practice their religious beliefs claim] it?s often just an excuse for bigotry and can?t be tolerated, even when there is no evidence that anybody has been harmed. … The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.?
Alito argued that some recent Supreme Court decisions, including the landmark ruling upholding as constitutional the government?s recognition of non-traditional forms of marriage, has fueled liberal intolerance against those who believe as a religious principle that the institution of marriage is limited to unions between one man and one woman.
?Until very recently, that?s what the vast majority of Americans thought. Now, it?s considered bigotry,? Alito remarked with great concern. ?I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those in public, they will risk being labeled as bigots, and treated as such by governments, employers, and schools. That is just what is coming to pass.?
GOVERNMENT VS. RELIGION
As proof of that conclusion, Alito cited several widely publicized court cases in which individuals challenged government rules designed to restrict their right to follow their sincerely held religious beliefs. The first case involves a lawsuit filed by the Little Sisters of the poor, an order of Catholic nuns who run homes dedicated to caring for the elderly and the, poor, regardless of religion. Alito noted that despite their good work, the nuns ?have been under unrelenting [legal] attack [by the federal government] for the better part of a decade because they refused to allow their health insurance plan to provide [services] to their employees? which violate their Catholic beliefs.
?Last spring, the Little Sisters won their most recent battle in the Supreme Court, by a vote of seven to two, but the case was sent back to the Court of Appeals, and the Little Sisters legal fight goes on and on,? Alito commented sadly.
Alito cited another famous religious rights case in which a family-owned pharmacy in Washington state called Ralph?s was cited for refusing to obey a state law requiring it to carry every prescription drug approved by the federal Food and Drug Administration, including drugs whose usage violated the religious beliefs of the drug store?s Christian owners.
The fact that Ralph?s referred its customers requesting them to many other nearby pharmacies where the drugs were readily available ?was not good enough? to satisfy the state of Washington, Alito noted. ?Ralph had to provide the drugs itself or get out of the state.?
Alito also cited the outrageous statement by a member of the Colorado Human Rights Commission condemning Jack Phillips, the Christian owner of the Masterpiece Bake Shop for refusing, on religious grounds, an order to supply a wedding cake to help celebrate what Phillips believes was an invalid and immoral marriage ceremony. The commission said that that freedom of religion had been used, ?to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, we can list hundreds of situations where freedom of religion has been used to justify discrimination.? Alito is concerned that the extreme anti-religious bias reflected by such remarks has become widely accepted, and that there are many other government officials like that Human Rights commissioner who claim that it is their moral duty to deny a religious individual their constitutional right to follow their conscience.
FREEDOM OF SPEECH ALSO THREATENED
Alito then warned, ?The rights of the free exercise of religion is not the only cherished freedom that is falling in the estimation of some segments of the population. Support for freedom of speech is also in danger. COVID rules have restricted speech in unprecedented ways. . . and some of these restrictions are alleged to have included discrimination based on the viewpoint of the speaker. Even before the pandemic, there was growing hostility to the expression of unfashionable views.?
?One of the great challenges for the Supreme Court going forward will be to protect freedom of speech. Although that freedom is falling out of favor in some circles, we need to do whatever we can to prevent it from becoming a second-tier constitutional right,? he said.
Alito noted that in this country?s leading universities today, those who dare to publicly support conservative political views and other beliefs that go against the dominant liberal viewpoint are routinely subjected to ruthless personal condemnations and the suppression of their right to free speech. ?Unfortunately, tolerance for opposing views is now in short supply in many law schools and in the broader academic community,? the justice said. ?When I speak with recent law school graduates, what I hear over and over is that they face harassment and retaliation if they say anything that departs from the law school orthodoxy.?
NEW YORK CITY?S END RUN AROUND GUN RIGHTS
Alito also commented on the curious history of a recent case brought to the Supreme Court, which challenged a New York City law for violating the letter and spirit of Second Amendment guarantee of the individual?s right to own a gun.
?The city [ordinance] makes it very inconvenient for a law-abiding resident to get a license to keep a gun in the home for self-defense. But the Second Amendment protects that right. And if a person is going to have a gun in the home, there?s broad agreement that the gun owner should know how to handle it safely, and that the best way to acquire and maintain that skill is to go to a [shooting] range every now and then [to practice].
?The New York City ordinance, however, made that hard. It prohibits the lawful gun owner from going to any range outside city limits. There were only seven ranges in the entire city, and all of these, but one, were largely restricted to members and their guests.
?There were other ranges that lay just outside the city,? Alito observed. ?So why couldn?t a city resident go to one of those ranges? The city really had no plausible explanation. But that didn?t stop it from vigorously defending its rule. Nor did it stop the district court for the Second Circuit from upholding it.
However, Alito said, the city?s real motivation to nullify the Second Amendment became obvious once he and the other justices on the Supreme Court granted a review. ?The city suddenly saw things differently. It quickly repealed the ordinance, and it said that on reconsideration doing that did not make the city any less safe. In the place of the old ordinance, it adopted a new vaguer one that still did not give gun owners [the right to legally own a gun that] they wanted. But the city nevertheless asked us to dismiss the case before it was even briefed or argued. And when we refuse to do that the city was obviously miffed.?
AN INTOLERABLE THREAT TO JUDICIAL INDEPENDENCE
Alito was also harshly critical of a legal brief filed by 5 Democrat U.S. senators on behalf of the challenged New York City gun ordinance. In the brief, the liberal lawmakers called the court ?a sick institution,? openly warned that ?if the court did not mend its ways, well, it might have to be ?restructured.?? Alito interpreted that as a ?crude threat? to the future of the Supreme Court as a non-partisan and politically independent institution of the federal government.
?It was an affront to the Constitution and the rule of law,? Alito told the Federalist Society audience, paraphrasing the remarks he made in court about the legal brief when it was first filed. ?Let?s go back to some basics. The Supreme Court was created by the Constitution, not by Congress. under the Constitution, we exercise the judicial power of the United States. Congress has no right to interfere with that work any more than we have the right to legislate. Our obligation is to decide cases based on the law period. And it is therefore wrong for anyone, including members of Congress, to try to influence our decisions by anything other than legal argumentation. That sort of thing has often happened in countries governed by power, not law. . .?
?Three of us [Alito and two of his Supreme Court colleagues] protested, but to no avail. . . After receiving this warning, the court did exactly what the city and the senators wanted. It held that the case was moot, and it said nothing about the Second Amendment.?
Alito then declared, ?I am concerned that the outcome might [encourage] the senators and others with thoughts of bullying the court. This little episode, I?m afraid, may provide a foretaste of what the Supreme Court will face in the future. And therefore, I don?t think it can simply be brushed aside.
Alito summed up his remarks by observing, ?The Covid crisis has highlighted constitutional fault lines, and I?ve criticized some of what the Supreme Court has done, but I don?t want to leave you with a distorted picture. During my 15 years on the court, a lot of good work has been done to protect freedom of speech, religious liberty, and the structure of government created by the Constitution. . . But in the end, there is only so much that the judiciary can do to preserve our Constitution, and the Liberty it was adopted to protect.?
AGUDAH CASE BROUGHT TO SUPREME COURT
While attempts to request a temporary restraining order against Governor Cuomo?s severe lockdown restrictions have failed, Agudah attorney David Schick has requested that the case be heard by Associate Judge Stephen Breyer of the US Supreme Court.
?This is the same case we have brought twice before,? said Mordechai Biser, an attorney for Agudas Yisroel. ?There is nothing new here. We are making the same arguments. The next logical step up is to ask the Supreme Court to hear the case. There is nowhere else to go.?
While many of the restrictions against shuls have been lifted, Biser says there are still shuls being negatively affected by the governor?s restrictions. He also pointed out the fact that while ?right now there has been relaxation in certain areas, that doesn?t mean that two weeks from now those restrictions can?t be slapped on again.?
Plaintiffs in the case include Agudas Yisroel of America, Agudas Yisroel of Kew Garden Hills, Agudas Yisroel of Madison, Rabbi Yisroel Reisman and Steven Saphirstein.