Kelli Ann Cox, Publisher
Did America die on Friday?
The government of the United States still operates. Nevertheless, more than anything else, America is an idea. The idea is that governmental power emanates from the will of the people fundamentally expressed in a written document, the Constitution, which does not change unless we meet certain conditions for amending it, which such conditions the people determined when they wrote and adopted it.
That idea seems to have died on Friday. The United States Supreme Court “legislated” the Constitution’s First Amendment, which became effective on December 15, 1791, out of existence on Friday.
What is even more fundamental an idea also died with that Judicial Branch “legislation”: Americans founded the society on this continent in order to ensure perpetual religious freedom from any government interference.
Before we examine what the Supreme Court did, let’s remember some basic American history.
A Brief Historical Reminder: The spur to North American colonization came from efforts to escape religious persecution
French Huguenots crossed the Atlantic Ocean and built a colony in 1564 at Fort Caroline near what is now Jacksonville, Florida.
In 1565, the Spanish, who didn’t like the French Protestants, established a military post at St. Augustine, Florida, in an attempt to chase the French Protestants away. They did more than just chase them away. The Spanish commander, Pedro Menéndez de Avilés, wrote to the Spanish King Philip II that he had “hanged all those we had found in [Fort Caroline] because…they were scattering the odious Lutheran doctrine in these Provinces.”
The Plymouth Company in 1620 and the Dutch West India Company in 1621 began to send thousands of colonists, mostly in the form of entire families, to North America to escape religious persecution in Europe.
Along the way, of course, those colonists discovered the vast resources of North America, which attracted more commercial ventures such as the English settlement of Jamestown in Chesapeake Bay in 1607, French efforts to colonize Quebec, and the Massachusetts Bay Company’s enormous colonization of what is now Massachusetts beginning in 1629. While very commercial in focus, the Massachusetts Bay Company was also successful as an effort to escape religious persecution by the Puritans who established a theocracy when they arrived in North America.
The Spanish, the French, and eventually the English colonists became particularly interested in garnering religious converts among the Native Americans who had settled North America previously.
America was very much a place of religious competition where tolerance, persecution, and downright murder were key attributes of the struggle at least through 1789 (if not beyond). Many of the Founding Fathers recognized that religious tolerance was an important aspect of the American struggle for national identity. Then Governor of Virginia Thomas Jefferson wrote in 1779, “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.”
James Madison, also of Virginia, and the man who was the chief author and “Father” of the United State Constitution, had made a political career campaigning both against government establishments of religion as well as against government interference of any sort with religion. Madison, an active Christian, observed that Christianity “disavows a dependence on the powers of this world…for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them.” In 1785, Madison described the fundamental “generous policy, which offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country.”
In President George Washington’s famous letter to the Jews of the Touro Synagogue in Newport, Rhode Island, the first President wrote “May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other inhabitants, while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
Madison added “And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.”
There can be little doubt that a fundamental principle upon which the United States of America formed is that government should never interfere with religion.
Madison’s June 8, 1789 speech in the United States House of Representatives provides the rationale for the First Amendment’s provisions regarding religion: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.” In same speech, Madison, who had been a primary author of the Constitution and one of the three primary authors of The Federalist Papers advocating its adoption, noted the preeminence of the Separation of Powers Doctrine to protect the rights of the people. Specifically, the Legislature legislates, the Judiciary only rules upon cases and controversies, while the Executive Branch enforces and administers the law.
That is the context for the adoption of the First Amendment to the United States Constitution, which reads in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
“Congress shall make no law…prohibiting the free exercise [or religion]…” – – The “Free Exercise” Clause of the First Amendment to the United States Constitution
Did the Court follow the Original Intent in the “free exercise” clause?
While courts have recognized that there are two components to the free exercise of religion, the freedom of belief, which is an absolute right, and the freedom to act, which may have limits within a reasonable governmental purpose, the Supreme Court has always, until last Friday, given a strong presumption that there is a right to protection of both beliefs and actions with respect to the free exercise of religion.
The best example may come from the 1940 landmark case of Cantwell v. Connecticut where the United States Supreme Court held that a state law that required licenses for solicitors for religious groups violated the Constitutional right of the free exercise of religion by Mr. Cantwell, a Jehovah’s Witness. A similar ruling occurred in 2002 in Watchtower Bible and Tract Society v. Village of Stratton.
Undoubtedly, the premier case under the “Free Exercise” Clause came in 1943, West Virginia State Board of Education v. Barnette, where the Supreme Court ruled that the state could not require Jehovah’s Witness children to salute the American flag, which their faith believed was idolatry in violation of the Ten Commandments. Justice Robert H. Jackson wrote:
“Freedom is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order…If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
With few exceptions, the Supreme Court followed the law, as set forth in the Constitution’s Bill of Rights, that government may not prohibit the free exercise of religion.
That was true until this past Friday.
Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada
In a 5 to 4 decision, on Friday, July 24, 2020, the United States Supreme Court ruled against Calvary Chapel Dayton Valley. Chief Justice John Roberts joined with the other liberals who comprise a majority on the Supreme Court.
Justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Brett Kavanaugh dissented and would have issued an injunction against enforcement of Governor Steve Sisolak’s (D-Las Vegas) Directive against churches.
Justice Alito explained the facts of the case in his dissenting opinion:
“Calvary Chapel Dayton Valley is a church located in rural Nevada. It wishes to host worship services for about 90 congregants, a figure that amounts to 50% of its fire-code capacity. In conducting these services, Calvary Chapel plans to take many precautions that go beyond anything that the State requires. In addition to asking congregants to adhere to proper social distancing protocols, it intends to cut the length of services in half. It also plans to require six feet of separation between families seated in the pews, to prohibit items from being passed among the congregation, to guide congregants to designated doorways along one-way paths, and to leave sufficient time between services so that the church can be sanitized. According to an infectious disease expert, these measures are ‘equal to or more extensive than those recommended by the CDC.’“Yet hosting even this type of service would violate Directive 21, Nevada Governor Steve Sisolak’s phase-two reopening plan, which limits indoor worship services to ‘no more than fifty persons.’ Meanwhile, the directive caps a variety of secular gatherings at 50% of their operating capacity, meaning that they are welcome to exceed, and in some cases far exceed, the 50-person limit imposed on places of worship.“Citing this disparate treatment, Calvary Chapel brought suit in Federal District Court and sought an injunction allowing it to conduct services, in accordance with its plan, for up to 50% of maximum occupancy. The District Court refused to grant relief, the Ninth Circuit denied Calvary Chapel’s application for an injunction pending appeal, and now this Court likewise denies relief.”
“This is a simple case. Under the Governor’s edict, a 10-screen ‘multiplex’ may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”
Justice Alito concluded:
“While the directive’s treatment of casinos stands out, other facilities are also given more favorable treatment than houses of worship. Take the example of bowling alleys. Some Las Vegas bowling alleys where tournaments are held can seat hundreds of spectators, and under the directive, these facilities may admit up to 50% of capacity. Not only that, the State tolerates seating arrangements at these facilities that pose far more danger than the plan Calvary Chapel proposes. An official state guidance document states that groups of up to 50 people may sit together in the grandstands of a bowling alley provided that they maintain social distancing from other groups. Thus, while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 provided that each group maintains social distancing from other groups.“In sum, the directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.”