Ethics Quote Of The Month: Justice Neil Gorsuch

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“It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

That is the final line of  Justice Gorsuch’s concurring opinion to the SCOTUS majority’s per curiam ruling, released last night,  in favor of New York Roman Catholic and Orthodox Jewish groups that sued over the state’s limited religious service attendance rules in response to the Wuhan virus.

The majority’s ruling concludes in part,

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic,the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

The emerging new Left no longer regards religious liberty as a big deal—ironic, since today we celebrate the group of religious expatriates who helped found our nation to escape religious persecution. The entire opinion, the concurring opinions of Justices Kavanaugh and Gorsuch, and the dissenting opinions of Chief Justice Roberts, Sotomayor and Breyer (Roberts argues that the case is moot) can be read here.

There can no longer be any reasonable doubt that President Trump’s Supreme Court nominations have provided the nation and its citizens with crucial protection  from a furious assault on its core rights by the suddenly “ends justify the means” obsessed Left. State and city government resorting to arbitrary edicts during the pandemic is but a preface to what is coming over the next four years.

If for nothing else, Americans who cherish the liberty that makes the nation unique and the hope of the world should give thanks this day for President Trump, and the Supreme Court he has left as his legacy.

 

 

20 thoughts on “Ethics Quote Of The Month: Justice Neil Gorsuch

    • It isn’t just that. How can you be a federal judge and think this is OK? Don’t they have to take some kind of oath to defend the Constitution? If they can’t uphold that oath,shouldn’t they resign? I suspect they never had any intention of upholding those oaths, they just wanted the power. We have had so many federal judges who do not support or agree with the Constitution that we think it is OK. It is not OK. When you have a large number (often a majority) on the Supreme Court who do not believe and will not defend much of the Bill of Rights, it is not OK. You can disagree with parts of the Constitution, but if you can’t uphold them, you can’t truly be a federal court judge, I’m sorry. You can disagree with Christianity, but you can’t truly be a Christian priest or minister if you do. These justices are just like Cardinals who mock the believers, but live off the donations of those believers, while not truly providing the sacraments that are their job. These justices are no better than con-artist televangelists.

      Now, the second part. What happens when NYC keeps doing it anyway? They are still in violation of Heller and nothing happens to them. I doubt the court would dare to sanction NYC. NYC is too powerful. So, this is a nice suggestion that the 1st Amendment still exists but don’t expect to find it anywhere in the deep blue areas.

    • From what I read, his dissent implied that the plaintiffs would be likely to win on the merits, and only asserted that changes made in the rules since then have produced effects equivalent to what they were seeking. I can kind of see that, and don’t think it makes him a hack.

      I’ve never been a fan of rulings that a case is moot. It seems to be abuseable by the government temporarily changing the rules without ever admitting that they didn’t have the authority they claimed.

      • I think it is mostly a matter of practical necessity. If an action attracts the attention of the court, it is often permanently withdrawn. Allowing an issue to be dismissed as moot lets the courts limited resources be directed elsewhere.

        While I agree with the principle of being able to declare an issue moot, I disagree very much it was appropriate here. The 25 person capacity limits in churches that seat 100’s is a national problem. This issue really isn’t moot even if Cuomo backs down, and a firm statement by the court that puts other states and cities on notice is very appropriate.

  1. Our local County Judge has issued a 4-day curfew from 10p to 5a. This in spite of a Federal Judge ruling such a curfew unconstitutional else where.

  2. Jack, thank you for this post. Neil B. Gorsuch’s “plain-spoken” writing reminds me of gems from my favorite SCOTUS Justice of all time, Robert Houghwout* Jackson.
    Reasons to be thankful.

    *btw, does you know how he pronounced his middle name?

  3. Out of curiosity, what does “PER CURIAM” mean in this context. The dictionary describes it as a “unanimous” decision, but there were three dissenting opinions. Does “per curium” refer to the majority opinion, or does it have to do with the dissenting opinion agreeing on law, but not on certain technical points?

    • From a quick check on Google:

      Per curiam opinion: An unsigned opinion, written for the court as a whole by an unidentified justice, is called a per curiam opinion. (In Latin, “per curiam” means “by the court.”) Written dissents from per curiam opinions are signed.

      So I guess the decision itself is unsigned but concurrences or dissents are signed.

  4. Iowa Law School prof Andy Grewal wrote, “I can’t believe that SCOTUS is going to allow relatively small, socially distanced religious gatherings. This is the sort of dangerous behavior that thousands of us gathered in the streets to protest.”

  5. Sotomayor vigorously disputed the contention that the religious groups were being unfairly discriminated against, arguing that comparisons between religious services and liquor or big-box stores were overly facile because the virus-related health risks posed by what people do in those places are starkly different.

    “Unlike religious services … bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time,” she wrote.

    The secular purpose of the restrictions is undisputed: saving lives. And there is no available alternative that would achieve the same goal.

    To the layman, it may well seem outrageous that liquor stores and bike shops are allowed to remain open while churches are not. But Sotomayor is right: incredibly different behaviors take place in these venues. Church services simply entail much longer periods of contact—and, yes, singing, which is a particularly robust way to spread the disease—with more people. Bike shops tend not to be crowded or require long visits. Liquor stores are very much in and out. And singing tends to be strongly discouraged in both.

    https://www.outsidethebeltway.com/scotus-strikes-down-new-york-church-closures/

    Note: directly comparable secular venues where patrons sit close together for long periods, such as cinemas, weren’t just restricted, they were closed. The risk is real.

    • No trustworthy data supports the presumption of what these “incredibly different” behaviors result in, and restrictions of First Amendment rights require more than biased guesses. For example, “social distancing” in most liquor stores is impossible.

      • We manage it. Any that can’t, close, or go online delivery only.

        Please don’t tell people thst something is impossible while they are successfully doing it.

        Now it may be infeasible, for you. You might not want to bear the inconvenience, so tell yourself it can’t be done. Even if you personally are willing, there might be just too many selfish ignoramae around you to make it work, without government crackdown you refuse to tolerate.

        $5000 fines work… even if you never end up actually collecting them (just don’t publicise that).

    • Here is one problem with that argument, which has bugged me from the beginning.

      The various governors have tended to designate ‘essential businesses’ as the big box stores such as Walmart, Food Lion, Albertsons, Home Depot and the like. They’ve closed most of the small Mom and Pop type businesses. There are two major problems with this approach that I see.

      One, as described in the WSJ recently, is that large businesses have the resources and deep pockets to both survive lean times and have the money to implement major changes to their stores. Small stores do not, although they do have ingenuity (not to be scoffed at). So large businesses are better positioned simply to survive.
      Two, when you force all the small businesses to close, where do their customers go? That is right, they go to the giant monster mega stores, now more mega and gianter than ever. So we end up crowding more people in those stores, which are also open fewer hours — why do we both preach social distancing and think that jamming folks in big box stores is good?

      To respond to another point — movie theaters, restaurants, these places don’t have to have (unrelated) people crowded in next to each other. I suspect if you operated a theater at 25% capacity, the people there would be perfectly able to socially distance. Now whether they could make money at that occupancy level is another story. If you’re socially distancing at a church, they can definitely fulfill their mission goals. Churches can schedule more services, if need be.

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