November 27, 2020

Dear Friend,

Late Wednesday evening as most of us were making preparations for Thanksgiving festivities, the U.S. Supreme Court was deliberating on an important religious liberty case, deciding whether New York Governor Andrew Cuomo’s capacity restrictions would be enforced on churches, synagogues, and mosques.

They made the right decision.

In a 5-4 majority opinion, with Louisiana’s own Amy Coney Barrett (ACB) casting the deciding vote, the U.S. Supreme Court enjoined enforcement of the orders which discriminated against people of faith and held them to stricter limits than everyone else. ACB was joined by Justices Thomas, Gorsuch, Kavanaugh, and Alito. Not surprisingly, Chief Justice Roberts once again sided with the Court’s liberal wing.

“The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions,” the majority wrote.

Justice Gorsuch, in his concurrence, wrote that he felt the restrictions on religious groups and not secular ones was an enormous constitutional issue. “Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”

Governor Andrew Cuomo, frustrated by the Court’s interference with his anti-faith initiative, acknowledged that the Court was “making a statement” and that it is no longer a liberal-dominated Court.

This ruling illustrates that the U.S. Supreme Court is finally oriented in a manner respectful to an originalist and textualist view of the U.S. Constitution, and we can thank President Donald J. Trump for that.

There are several other important cases before the Court at the moment, including a case on Obamacare and Fulton v. City of Philadelphia, which addresses the rights of employers to hire and fire as they see fit. The next and perhaps most important SCOTUS item is likely to be an accelerated appeal on behalf of Team Trump’s legal challenge on the 2020 elections. Stay tuned!

Some have asked whether this ruling has any bearing on the Louisiana legislature’s challenge of Governor John Bel Edwards’ COVID restrictions. The SCOTUS ruling was based on ‘unequal” treatment of churches/synagogues vs. other establishments. So, this was a very narrow victory, and the Court has yet to decide on the merits of these First Amendment cases. If all businesses and organizations in New York had been treated uniformly, this court may have returned a different outcome -- we simply do not know.

So, does this opinion provide clarity on Louisiana churches and their treatment under Louisiana executive emergency orders and Attorney General Jeff Landry’s pending suit before the state supreme court?

If the “unequal treatment” question is raised, the Edwards administration will likely argue that he considered Churches ‘essential providers’ in his Proclamation, and treated them more favorably in his most recent order. Yesterday’s order essentially brings Louisiana back to Phase 2 while leaving houses of worship in Phase 3 on occupancy guidelines. This is certainly not ‘unequal’ with regard to churches, but perhaps superior in his treatment of houses of worship.

This leaves the larger question of separation of powers and first amendment limitations during a health emergency, in general, unanswered.  

To be continued!

I hope you and your family had a wonderful Thanksgiving and continue your celebration of gratitude. Thank you for your essential support of LFF and our mission to protect life, liberty, and limited government in Louisiana.

In His Service,


Gene Mills
President
Louisiana Family Forum

P.S. Today is Black Friday, a day when Americans are known to purchase an enormous amount of product from retailers and service providers. It also kicks off a season of giving for non-profits like LFF. We would be grateful to have your support on Black Friday

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