In law school I took a course in Church and State. At the end of it I was as confused about the law in America concerning it as I was before I knew anything about it. There are two major schools of thought as to the meaning of the First Amendment that are absolutely contrary to each other. I wrote in my final exam about my exasperation and my grade reflected the professors exasperation with my writings. That was all right since by that time the die had been cast and it mattered little.
The First Amendment where it is applicable here says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” That to me was quite specifically addressed to one body: Congress. It did not seem to apply to the states. For instance “Massachusetts did not abandon its state support for Congregationalism until 1833.” The Massachusetts constitution required those elected to state office to affirm, “I, A. B., do declare, that I believe the Christian religion, and have a firm persuasion of its truth;” The governor had to be a Christian. Article II provided: “It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe.”
Things would change as time passed. The 14th Amendment was used to require states to follow some of the federal government’s actions. But beyond that the Christian sections of the constitutions in all states eventually were set aside.
What is prohibited to Congress that it make “no law respecting an establishment of religion” now applies equally to the state legislatures. The the originalists on the Supreme Court will not give this its original meaning limiting it to Congress. Their actions show they accept that the 14th Amendment’s privileges or immunities clause – which provides that no state shall make or enforce any law that abridges the privileges or immunities of U.S. citizens – requires the same of the state legislatures as of Congress.
That part forbidding the establishment of a national religion is clear. Although it seemed lately that one religion was getting preferential treatment over others. How often die we see photographs of what appeared to be some type of prayer service in the Whitey House where preachers were laying hands on each other and Trump?
The First Amendment did not stop there with preventing the establishing by law of a religion. It went on to say Congress) was disbarred from “prohibiting the free exercise” of it. That has come down to the basic proposition that religious exercises must be treated in the same manner as secular ones.
That was the issue in the case involving the Roman Catholic Diocese of Brooklyn New York against New York Governor Cuomo. It appears by trying to limit the spread of coronavirus in New York the governor was infringing on the Catholics free exercise of their religion by imposing limits on the number of people able to attend it services.
The Supreme Court decided the case after “an emergency petition” which it seems to be encouraging lately. It seemed strange that a Roman Catholic diocese’s complaint was heard by Roman Catholic justices. Would not one expect them to recuse themselves?
The Court in an unsigned opinion wrote: “denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.” Obvious the latter statement is false. The increased likelihood of contracting the virus by removing restrictions will do great harm.
But reading the opinion one is struck by the favoritism granted to religious gatherings over “more severe restrictions . . . to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” The religious groups were allowed to have attendance although strictly limited while the others were forbidden it. Yet because businesses labeled essential like liquor stores and bicycle shops were not limited in attendance the justices found disparate treatment of religion by comparing apples with oranges.
There has for a long time been the argument over secular vs religious in our country. We can expect from this Supreme Court to see the ascendancy of religion. There are some long standing traditions like using taxpayer money to subsidize certain religions that might be in peril.