Likewise, the justices in the majority seemed to have little sympathy for a general rebellion against all Covid-19 mandates. Justice Brett Kavanaugh, a Trump appointee, specifically noted that he did not “doubt the state’s authority to impose tailored restrictions — even very strict restrictions — on attendance at religious services and secular gatherings alike.” During a public health emergency, individual freedoms can be curtailed where necessary to protect against the spread of disease. Most of this authority is at the state and local, not the federal, level. But when public health measures intrude on civil liberties — not just religious exercise, but other constitutional rights — judges will insist that the measures be nonarbitrary, nondiscriminatory and no more restrictive than the facts and evidence demand.
The real disagreement between Chief Justice Roberts and Justice Breyer and the majority was over a technical though important detail. This disagreement made the court look more fractured than it actually was. Just days before the decision, on Nov. 19, the governor’s lawyers sent the court a letter stating that he had redrawn the red and orange zones in Brooklyn, conveniently putting the churches and synagogues that were the focus of the litigation into the more permissive yellow zone. The letter cited no reasons for the reclassification and offered no assurance that it might not happen again, at a moment’s notice, with no more explanation than this time.
The court majority regarded the governor’s about-face as too fleeting and changeable to derail a decision on the merits. Chief Justice Roberts and Justice Breyer, by contrast, concluded that the change eliminated any need for the court to intervene, at least for now. That is a reasonable position (though we disagree with it) — and it does not indicate any fundamental disagreement with the five justices in the majority about the need to protect civil liberties even in a time of emergency.
Perhaps Chief Justice Roberts and Justice Breyer believed that Governor Cuomo and government officials around the country will read the court’s opinions and recognize that it is time to bury the meat cleaver and begin to regulate constitutional freedoms with a scalpel — without the need for a judicial order.
That message is lost if the case is seen as the mere product of Justice Amy Coney Barrett’s arrival at the Supreme Court. With the presidential election behind us, the balance between Covid-19 precautions and civil liberties no longer needs to be a partisan issue. The right to exercise religion in accordance with conscience is one of the most important in the Bill of Rights, and it is time for mayors and governors — and courts — to treat it that way.
Michael W. McConnell, a former federal judge, is now a law professor and director of the Constitutional Law Center at Stanford Law School. Max Raskin (@maxraskin) is an adjunct professor of law at New York University.
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