Monday, April 12, 2021

Briefly Noted: Margot Cleveland Shares My Hope

Today Margot Cleveland reviews the SCOTUS decision on Free Exercise of religion in Tandon v. Newsom. Yesterday we discussed Shipwreckedcrew's views on the case. SWC noted the emergence of what seems to be a solid five vote majority on the SCOTUS that 

1) favors a robust application of the Free Exercise clause and 

2) has run out of patience with CJ Roberts' go-slow approach.

I concluded by expressing the hope that the Tandon decision signals a shift in basic attitudes on the part of the SCOTUS with regard to conflicts between guaranteed constitutional rights and state regulation:

To speculate a bit on equally broad issues, I wonder whether this get tough approach when it comes to the First Amendment v. State regulation may presage an openness to reexamining the entire notion of judicial deference to the supposed "expertise" of the administrative state. We know that Gorsuch's views on that subject--and I believe the same applies to Justice Amy--were key to his nomination. In point of fact, all three of the other justices in the majority--Thomas, Alito, and Kavanaugh--seem open to that reexamination to one degree or another. That would be major good news.

You can find Cleveland's fine discussion of the case here:

Supreme Court Slam On California COVID Rules Also Burnishes Religious Liberty Protections

The court’s unsigned order in Tandon v. Newsom signifies the reemergence of religious liberty as a valued jurisprudential principle to the Supreme Court.

Of particular interest is Cleveland's final section: "These Principles Could Extend A Lot Farther." In this section Cleveland contrasts previous SCOTUS Free Exercise decisions that relied on the RFRA (Religious Freedom Restoration Act) with the current decision--which is based solidly on the US Constitution. This is a big difference. Cleveland confines her discussion to religious freedom issues, but--as she says--These Principles Could Extend A Lot Farther. The principle I have in mind, as I stated yesterday, is subjecting government regulations to strict scrutiny any time they affect basic constitutional principles--such as rights that are enumerated in the Constitution. The importance of this is that it would strike a blow against the very central concept of the Progressive agenda--rule by "experts". 

While Cleveland does confine herself to religious freedom in this article, she unquestionably understands the broader dynamics of this decision--as do liberal legal types. Thus, in her concluding paragraphs, she writes:

Here, it is important to note that while the Supreme Court ruled in Hobby Lobby’s favor in the Christian crafting store’s case challenging that abortifacient mandate, that decision rested on the Religious Freedom Restoration Act, or “RFRA,” not the Free Exercise Clause of the Constitution. That distinction matters significantly because, when then-President Bill Clinton signed RFRA into law in 1993, it held near unanimous support from Democrats.

Democrats have since reversed their views on religious liberty, and their legislative priorities such as the so-called Equality Act expressly provide that RFRA would not exempt Americans with religious objections from the law’s reach. The Free Exercise Clause may well then be the only remaining protection of conscience rights, but thankfully the Tandon decision from last week suggests the high court intends to resurrect those by giving, in the words of one left-leaning legal commentator, a “most-favored nation status” of sorts “for religion.”

That is as it should be, given our Founders valued religious liberty so greatly they ordained free exercise rights among those [other rights] contained in the first of the amendments.

So, hope.



  1. It's still a depressing day when we have wondered into the territory of passing laws to *allow* ANY activity as an exemption carve out vs simply supporting liberty "in whole".

    It's fighting for scraps vs living a life in a free and independent society.

    These "big picture" social constructs REALLY make my blood boil.

  2. And when the court frustrates the leftist anti-religion putsch--and, indeed, should it actually begin to apply strict scrutiny to other areas of leftist chicanery, does anybody doubt what recommendations will issue forth from the Baideng Commission on Packing the Supreme Court with Radical Extremists?

  3. Other rights include RKBA, which was written to make certain that tyranny does not prevail. That will be fun to watch.

  4. I haven't read the recent cases, but it sounds like they may be a turnabout is fair play in the penumbra of privacy case line, such as Griswold v. Conn. Although a lot more expressly based on the text of the constitution, rather than substantive due process. Be nice if they continue just enforcing the actual first amendment free exercise clause, instead of the made up "separation of church and state."