Free Exercise of Religion Vindicated
As we’ve expected, hoped, and prayed for, hearings for the infringement on the freedom to exercise religion are beginning to be heard by the Supreme Court, our nation’s highest authority on law and justice in the interpretation of the Constitution. In a massive victory for religious liberty, the Supreme Court handed down a 5-4 decision in the case known as Tandon v. Newsom in the favor of Tandon. In summary, the ruling indicated that California Governor, Gavin Newsom, infringed upon our constitutional freedoms, causing irreparable harm to religious liberty in his unconstitutional mandates at the start of the COVID-19 pandemic in early 2020.
Albert Mohler, President of The Southern Baptist Theological Seminary, spent a portion of his April 13th segment on The Briefing to discuss this landmark decision. Keep reading, or listen to the full details below.
The Briefing - Part I - Tuesday, April 13th - Listen to the episode instead here.
Free Exercise of Religion Vindicated: A Big Victory for Religious Liberty at the Supreme Court
“Another big win for religious liberty at the United States Supreme Court, and one of the most interesting dimensions of this news story is the fact that many people in the country don't think that it's a big issue at all. Not just religious liberty, but this particular issue before the court. This was a court ruling, not a major decision, but a ruling nonetheless, that was handed down five-four in favor of churches and house churches in the state of California, who had made appeal over against restrictive rules that have been put in place by the California government, in the form of governor Gavin Newsom. Thus, the case is known as Tandon v. Newsom. And what this case concerned was the fact that the California governor had issued regulations that, up until the 15th of April, denied any kind of meeting in a house with more than three families.
And even as these churches, house churches, had sought relief, they were doing so over against having lost at the level of the ninth circuit. That's generally considered to be the most liberal appeals court in the United States. The case then went to the Supreme Court, and again, the ruling was five-four. It's an unsigned ruling, but there were signatures on dissents to the ruling. That five-four number reminds us of the fact that every single seat, every single vote on the Supreme Court matters. Looking at the court right now in its current composition, most people would say that there are six conservatives and three liberals. There are six justices nominated by Republican presidents and three by Democratic presidents, and yes, even as some people argued to the contrary, it really does make a difference. Many of these decisions are entirely predictable along not only ideological, but Democratic and Republican lines.
This is a liberal versus conservative count, regardless of how you want to identify the labels. But in reality, you're looking at five-four, meaning that in this case, the Chief Justice of the United States, generally classified as a conservative and appointed as chief justice by Republican President George W. Bush, the chief was on the side of the four, rather than the five in this ruling, which meant that he ruled along with the three Democratically nominated justices, the three more liberal justices, upholding, at least to this extent, the ruling by the ninth circuit. But the five is greater than the four, and thus by a one-vote margin, this is a big victory for religious liberty. Basically, what has taken place here is that the Supreme Court of the United States says that the state of California was violating the religious liberty rights of California citizens, by saying that you could not have meetings in a house, including prayer meetings, Bible studies, or house church meetings, that would involve individuals from more than three families.
Now, the state of California came back and argued that it's restriction did not violate religious liberty, because it was generally applicable. Now, in most cases, that argument of general applicability is quite important. It's not enough to indicate that a regulation, or a restriction, or a law is constitutional, but when it comes to religious Liberty, there must at least be the bare minimum of general applicability. But this ruling by the Supreme Court is so important because it indicates that general applicability is, even if generally right, not enough to justify a restriction on religious liberty. Now behind this is the legal principle that religious liberty, being clearly established in the US constitution under the bill of rights and the first amendment, the free exercise of religion being guaranteed, any kind of restriction on religious liberty requires what the court calls strict scrutiny.
That means that it's not a level playing field. That means that the one arguing for the restriction of religious liberty, in this case, the state of California under governor Gavin Newsom, bears the greater responsibility. The greater responsibility is to justify any infringement on religious liberty, not to justify overthrowing or restricting the restriction. The majority of five justices in this ruling that was handed down on Friday, said that the state, the state of California, the governor of California, had not met that minimal requirement for justifying this restriction on what would take place in a home. And in particular, the meeting of a house church, or a Bible study, or a prayer group, or anything similar. The exercise of the religious liberty interests of American citizens gathering together in private homes for a private religious, and in this case, Christian, Bible study or worship service. Now there are several issues we need to understand that really aren't in consideration here. The Supreme Court doesn't have an argument for or against house churches.
It doesn't have an argument for or against any kind of specific liturgy or order of worship. It doesn't have any kind of rule for or against any specific number of people who may be gathered in a worship service. It has the constitutional responsibility to guarantee the free exercise of religion, to issue rulings consistent with the constitutional guarantees of respected liberties that are at the very core of the American constitutional order. So the Supreme Court ruling isn't important because it has anything to do with house churches. That's actually rather irrelevant to the constitutional ruling here. It's not important because the Supreme Court has stood up for the right for people to do whatever they want in their homes. No, that's not actually the core issue here in the ruling either. It is to say that if the state of California intends to put restrictions in place, even in the context of COVID-19, that would restrict religious liberty, it's going to have justify those restrictions.
And in this case, it has failed to justify those restrictions. Once again, the Supreme Court has said that a government has acted unconstitutionally in infringing the religious liberty rights of citizens. And not only even in the context, you might say, of the COVID-19 pandemic, but particularly in the context of this pandemic. The majority in this case was made up of justices Amy Coney Barrett, Clarence Thomas, Samuel A. Alito, Jr., Neil M. Gorsuch, and Brett M. Kavanaugh. And as I said, the liberal justices were on the other side and they joined together, three of them, in issuing a dissent to this ruling. Justice Elena Kagan, writing for the three liberal justices, and that would include justices Stephen G. Brier and Sonia Sotomayor. She argued that the state of California had met the constitutional requirement, because this was a generally applicable restriction. That is to say, you couldn't have a meeting of more than three families in a house for a worship service, but you couldn't do it for a Boy Scout troop. You couldn't do it for a Tupperware party. You couldn't do it for any number of other things.
But here's where a key constitutional issue is at stake. There is no issue of strict scrutiny for a meeting of the Boy Scouts in a house. There is no requirement of strict scrutiny for a Tupperware party. There is a requirement of strict scrutiny because religious liberty is enshrined within the United States constitution as a fundamental right. But the majority in this case went on to make another very important argument. The unsigned ruling included these words: "Although California officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15, and officials with a track record of moving the goalposts retain authority to reinstate those heightened restrictions at any time."
That might appear to be rather bland language. Trust me, it's not. The majority in the Supreme Court here said that they did not trust the government of California that may have voluntarily indicated they would end these restrictions, to stand by that termination of the restrictions. Instead, they came right out in public in the ruling and said that they don't trust that the California officials, having trampled on religious liberty before, would not turn around and do so again, if the court did not decidedly hand down a ruling on the issue. Now this gets to another big dimension of the Christian worldview we have to keep in mind here. And that is that when you are looking at government assuming powers, it almost never gives back powers that it takes unto itself. We have seen that throughout the course of human history. When government says, we must, under these circumstances, put these restrictions of liberty in place, put these provisional organizations in place, put these provisional taxes in place, rulings in place, policies in place.
They almost never come back and say, well, you know the pandemic's over so we can shut all of those down. As a matter of fact, right now, as we are looking, hopefully, at the aftermath of the COVID-19 pandemic, government at every level is going to have to be forced to relinquish its grip that it has taken in the course of this pandemic. And go back to understanding that it has no role in many areas of life, that it claimed to have, plausibly or implausibly, in the context of a deadly pandemic. One final issue in this ruling that was handed down by the Supreme Court on Friday, the ruling included this language saying that the challengers in this case, those who were challenging the restriction, looking to the court for relief, their interest in religious liberty was "irreparably harmed by the loss of free exercise rights for even the minimal periods of time, and the state has not shown that public health will be imperiled by employing less restrictive measures."
What's so important about that is that a majority of the Supreme Court, in this ruling, said an injury to religious liberty is a real harm. It is a harm to citizens. It is a harm to this constitutional order. It is a harm that must be reflected upon and must be recognized as a harm, and thus must be remedied even in the context of a pandemic. liberty is important, said the United States Supreme Court, even when that liberty is imperiled "for even minimal periods of time." Just remember this, if religious Liberty is imperiled anywhere, it is imperiled everywhere. If it is imperiled for any amount of time, it is imperiled for all time. It's a good day for liberty when the Supreme Court of the United States recognizes that, and writes it right before us in black and white text.”
If you haven’t had the opportunity to listen to “The Briefing” by Albert Mohler, it is a wonderful, daily podcast on world news from a Christian worldview. Check it out via Apple Podcast, Google Podcast, and Spotify, or head to https://albertmohler.com/the-briefing.
Albert Mohler, The Briefing, Tuesday, April 13th, 2021, Part 1, https://albertmohler.com/2021/04/13/briefing-4-13-21
