Mark Rienzi, who represented the Catholic nuns who opposed Barack Obama’s abortion-funding mandate, says the government’s restrictions of religious organizations during the coronavirus pandemic have taught an important lesson.
Citizens need to be “holding the government’s feet to the fire,” pressing officials to justify their restrictions with evidence, he wrote in a commentary for RealClear Politics.
“The lesson here is important, and it is not limited to COVID or religious liberty. When governments want to restrict our rights, courts must insist on some evidence about the alleged harm,” said Rienzi, director of the Becket Fund for Religious Liberty.
“Without real judicial scrutiny, governments will be tempted to ignore rights and play favorites. Holding the government’s feet to the fire — and making it justify restrictions it wants to impose — is the best way to protect freedom,” he wrote.
Rienzi noted that last week a federal judge in Washington struck down the nation’s last limit on the number of people who are allowed to attend a worship service.
“The government lost for what has become a common reason: It could offer no evidence that it needed to impose harsh limits on worship that do not apply at restaurants, train stations, or office buildings,” he explained.
He said it was common for governors, mayors and others to order closures – or significant attendance restrictions – on churches, synagogues, mosques and others during the outset of COVID-19.
The first few cases that went to court were won by governments, as judges deferred to their decisions.
But the rulings simply empowered governments to demand more.
“When courts simply defer to governments about the need to restrict liberty, governments will restrict more liberty. Worse, they will favor the interests they think are important, and restrict rights that they think are not so important,” he said.
Rienzi said the security of constitutional rights depends on courts demanding evidence of decisions that governments make.
“The COVID religious liberty cases demonstrate this lesson playing out over the past year. Early in the pandemic, courts were quite deferential to governors and mayors who said they needed to outlaw in-person religious worship. The issue reached the Supreme Court for the first time last May in a case called South Bay Pentecostal Church v. Newsom. There, Chief Justice Roberts explained that COVID restrictions were ‘subject to reasonable disagreement’ and that governments should get ‘especially broad’ latitude, not to be second-guessed by judges,” Rienzi said.
The result was that worship bans surged.
“Most famously, New York Gov. Andrew Cuomo targeted his COVID orders very specifically at Orthodox Jewish neighborhoods — even while leaving other neighborhoods with higher COVID levels out. Many governments allowed large-scale protests over the death of George Floyd — while still outlawing smaller outdoor gatherings for religious purposes. And governments began loosening COVID restrictions in order to allow what they viewed as important industries (think casinos in Nevada and movie production in California) to reopen while still restricting the return to worship,” he said.
Eventually, he said, “the courts caught up.”
A turning point happened last fall when the Supreme Court ruled against restrictions in Brooklyn. The justices wanted to see “proof” that the government needed to enforce its orders.
“And because the government had not presented such evidence — in fact, there was ‘no evidence’ that the churches and synagogues at issue had contributed at all to the spread of COVID — the court found it ‘hard to believe’ that the prohibited religious worship ‘would create a more serious health risk than the many other activities that the State allows,” he wrote.
The lesson came next: “Once the courts began requiring some proof from the government for its restrictions, those restrictions — and the public health claims on which they had been based — fell apart.”
Nevada’s “preferential treatment” of casinos? Gone. California’s arbitrary limits? “Rejected by the Supreme Court.”
Even Roberts recognized by that point that deference “has its limits.”
Rienzi said, “A year of COVID has taught us many hard lessons. Let’s hope the lesson about how to protect freedom is one we won’t soon forget.”
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