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:

Shipwreckedcrew On The SCOTUS' Free Exercise Decision

As most of you will already be aware, on Friday the First Amendment right to the Free Exercise of religion got a boost from the SCOTUS in a 5-4 decision. Shipwreckedcrew has what I consider to be an enlightening article on this decision, which I'll try to summarize for general readership. Here's a link to the article:

What the Supreme Court Did Friday in Reversing the Ninth Circuit in a Religious Freedom Case -- Again

The case in question had to do with California restrictions on in-house religious worship--supposedly put in place to combat Covid. A key to understanding the significance of this decision is the fact that it was NOT formally a decision on the merits of the case. Rather, it was a decision on whether a preliminary injunction should be issued while the case was appealed. The plaintiffs had challenged the CA restrictions in federal district court, where the restrictions were upheld. They then appealed to the 9th Circuit and requested an injunction on the enforcement of the restrictions while the appeal was pending. A three judge panel of the 9th Circuit refused to issue that injunction and the plaintiffs appealed to the SCOTUS--which told the 9th Circuit that they'd got it all wrong and instructed the 9th Circuit to issue the injunction.

SWC makes the following interesting point. There are a number of similar free exercise cases that the SCOTUS has dealt with, but always on the level of preliminary injunctions. The result is that, in SWC's words, there are:

a host of religious freedom matters that are currently the subject of litigation around the country, many of which involve clashes between the constitutionally grounded religious free exercise right, and statutorily based “civil rights.”

In other words, the First Amendment's Free Exercise clause has become a hot button issue in constitutional litigation, with State legislatures increasingly seeking to restrict free exercise in preference to other "civil rights". For example, the "right" to sexual or gender based expression. While those cases may be different in some respects from Covid related "public health" cases, the similarity is that they all impact a fundamental constitutional right--an explicit right, not a "right" legislated by courts from the penumbras of the constitution.

Little Sisters For The Win! And More

Decisions in two related religious freedom cases (both involving Catholic institutions, but with far wider implications) were issued by the SCOTUS this morning, and they're big victories for Trump--both cases were decided 7-2, with Breyer and Kagan joining the majority. The 7-2 majority is resounding.

The highest profile case, of course, was Little Sisters of the Poor v. Commonwealth of Pennsylvania. The Little Sisters of the Poor have been a target of intense persecution by the Left and the legal "resistance". This excerpt from the Becket Fund web site gives you the picture:

CASE SNAPSHOT 

Despite a 2016 victory at the U.S. Supreme Court, an Executive Order, and a new rule that protects the Little Sisters of the Poor and other non-profit religious groups from the unconstitutional HHS mandate, the Little Sisters are still in court. In November 2017, after the federal government issued their new rule protecting religious groups from the mandate, the Commonwealth of Pennsylvania and several other states sued in federal court to take away the nuns’ hard-won religious exemption. Becket intervened on behalf of the Little Sisters, arguing that the states have no right to challenge the new rule. Oral argument was held on March 23, 2018 to decide whether the Sisters will be allowed to intervene in the case, and on April 24, 2018, the Little Sisters’ motion for intervention was granted. 

STATUS 

On July 12, 2019, the Third Circuit ruled against the Little Sisters. On October 1, 2019, the Little Sisters of the Poor asked the Supreme Court to protect them from the HHS contraceptive mandate again and end their legal battle once and for all. The Supreme Court heard oral argument in Little Sisters of the Poor v. Commonwealth of Pennsylvania on May 6, 2020. On June 8, 2020 the Court ruled 7-2 in favor of the Little Sisters of the Poor. 

I will note that the Little Sisters case (the other case being Our Lady Of Guadalupe School v.  Morrissey-Berru) was decided on the basis of the RFRA (Right to Religious Freedom Act) and the ACA (Obamacare), rather than First Amendment issues. Footnote #10 in the Little Sisters case states:

The dissent claims that “all agree” that the exemption is not supported by the Free Exercise Clause. ... A constitutional claim is not presented in these cases, and we express no view on the merits of that question. 

Clarence Thomas wrote the majority opinion in the Little Sisters case, Alito in the Our Lady of Guadalupe case. Thomas wrote: