It is being reported that today, December 3rd, the Supreme Court reversed and sent back another case filed by a church complaining about restrictions on services, this time by the California  governor. The Court hasn’t posted the decision yet so I don’t know the details.

Here is what I figure: The district court upheld the restriction under the the Supreme Court’s prior cases in the summer. (here is my post about the South Bay case:  https://wp.me/p7pwQD-FW  )

The case  went up to the Ninth Circuit and was affirmed under the same Supreme Court precedent. After the the circuit court opinion was issued, last week the Supreme Court reversed itself in the the religious challenge to Governor Cuomo’s restrictions on churches and synagogues.  Here is my post about that: https://rickjaffeesq.com/2020/11/27/the-supreme-court-does-an-about-face-on-church-synagogue-restrictions/

So, today it seems like the Supreme Court is sending the case back to the district court (directly or indirectly through the Ninth Circuit, I’m not sure which), for reconsideration in light of last week’s opinion in the Cuomo case.

I doubt there is anything new or precedent setting. It is not an uncommon move by SCOTUS to reverse and send back a case if a new rule of law is made by it and lower courts had issued decisions under the old precedent.

You can expect to see a few more of these short or summary reversals in the coming weeks and months. Naturally, we should also start seeing some lower courts starting to apply the new rule in future religious services challenges.

And what’s the Supreme Court’s new rule?

I think it’s pretty simple and to paraphrase from Justice Gorsuch’s concurrence in Cuomo: There’s no universe in which the Constitution will permit stores and bike shops to be fully open and churches services restricted, notwithstanding differences in use or level of risk (i.e. people are in stores for less time, have less close contact in malls than people sitting in churches). Those kinds of distinctions, regardless of whether there is science behind them, violate the First Amendment’s explicit protection to practice religion without government interference.

That all is straightforward because it all comes directly from the words of the Constitution (and conservative love the actual words of the Constitution and feel they are bound by them (most of the time anyway)). The harder and unclearer issue is whether the new Supreme Court majority will protect personal freedom and privacy rights. I read Justice Alito’s speech to the Federalist society as yes to offering the same kind of protection for strict lock-downs. The fact that the majority is not willing to defer to accepted science for religious services (meaning accepting the distinction between the lower risk of shopping versus spending an hour or two in a religious service) is some indication that they won’t when it comes to non religious personal freedom issues, like lock-downs, but we will have to see how that plays out.

When we move from lock-down issues to bodily integrity rights, that could be a different story. Many of you may not know that there is no explicit privacy right in the Constitution. It was created largely by the Warren Supreme Court.  The problem is that conservatives in general don’t believe that it is the role of the courts to create new constitutional rights, or what Justice Gorsuch called penumbra rights, which are rights implicit or derived from the words of the Constitution. As indicated in my prior post, I sensed that Justice Gorsuch was somewhat dismissive of the penumbra privacy rights asserted by the Rev. Jacobson.

I don’t know how the Supreme Court will rule on these issues, especially when it comes to mandatory vaccination laws and orders, but I believe they will address the issue in the next year or eighteen months (or sooner), at least if I have anything to do with it (and I think I will).

 

Rick Jaffe, Esq.