As you all know by now, on Wednesday night the Supreme Court stayed enforcement of NY Governor Cuomo’s restrictions on religious gatherings, in Roman Catholic Diocese of Brooklyn, New York v Andrew Cuomo. It is is just an temporary stay pending appeal, so technically it is not necessarily the Court’s final word on the matter, but nonetheless it is extremely significant as a predictor of future cases. It also may have significance for those interested in the mandatory vaccine issue.

But first and foremost, the decision demonstrates  the first principle of Constitutional interpretation, namely, the Constitution means what five justices say it means at any given time, and that can change radically in a short period of time, because of circumstance, the most important one being the make-up of the Court.

In the Summer of 2020, the Supreme Court twice upheld restrictions on religious services based on deference to the government’s police power.  The vote was 5-4. The Chief Justice joined the liberals to form the majority. Uber liberal Justice Ginsberg is gone, replaced by a highly religious arch conservative. To the surprise of few, the Court’s decision Wednesday night went the other way, with the same vote tally. The new religious conservative justice created the new majority, with Chief Justice Roberts, who was previously the swing vote in the cases in the summer (and many other cases), is now the dissenter-in-chief, and likely will be so in many future decisions.  That all is obvious, but there is more to the decision

One of the main mantras of the vaccine concerned is the misplaced reliance by the state and federal courts on Jacobson, which has achieved landmark case status for the proposition that the state can impose vaccine mandates over the privacy and bodily integrity rights of individuals, and in particular children attending school.  What the courts failed to acknowledge, according to the vaccine concerned, is that the regulation challenged in Jacobson imposed a $5 fine ($140 in today’s money) for non compliance.  So it really was not a true mandate, but rather a reasonable choice. But the courts relying on Jacobson either forgot about that or did not see its importance. That is until Justice Gorsuch’s concurring opinion in this case.  Much to chagrin of Chief Justice Roberts, Justice Gorsuch engaged in a extensive analysis of Jacobson, and was quite dismissive. Here are his words which will warm the cockles of the hearts of all vaccine concerned:

“Why have some mistaken the 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 crises. 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.” (page 5-6 of the his concurrence).

Boy, can this guy write! But alas, he also seemed a little dismissive of unstated, penumbra privacy/substantive due process rights underlying Reverend Jacobson’s position. But then, arch conservatives like Gorsuch are not big on judges creating rights, (I think mostly because of the abortion issue).

Justice Gorsuch’s frustration with the court’s prior two  decisions upholding religious gatherings restrictions, which was voiced publicly albeit perhaps indirectly by Justice Alito in a speech to the Federalist Society, is best summed up by how Justice Gorsuch ended his concurrence:

“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.”

Here is the decision with all the concurrences and dissents. You should read it, especially Justice Gorsuch’s opinion because it draws a line in the sand, and he is telling us all how he and the four other conservative judges (aka the majority) will be looking at religious restrictions and probably other restrictions during the pandemic, and every other case that comes before the Supreme Court.

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Rick Jaffe, Esq.