CONSTITUTIONAL CONVERSATIONS
A Supermarket or a Concert?
by
M. E. Boyd, Esq., “Miss Constitution”
For all of you who try to follow the logic of the Supreme Court, Miss Constitution wants to give you permission to take whatever steps are necessary to prevent you pulling out your hair or other potentially destructive behaviors. The logic of Supreme Court decisions lately feels like a desired outcome first and then back-filling to come up with legal logic. All decisions of the Supreme Court are written in such a way as to give the illusion of high intellect but for some cases the illusion does not really work. Miss Constitution found herself virtually laughing and that is not a good sign relative to the usual hushed deference she gives to the highest court in our land. The latest “free exercise” cases are the subject, but the rulings do have a larger lesson to teach us. First, let us review our rights against government power. We have unalienable rights as individuals that are indirectly against government power in that government has no authority whatsoever regarding them. These are life, Liberty, and a form of Liberty called “the pursuit of happiness” that are rights from God, not gifts from government. These rights are enunciated in the Declaration of Independence. They are not enforced by the Supreme Court and have been relegated to mission statements only. John Locke felt strongly that private property rights are unalienable but Thomas Jefferson and the committee that wrote the Declaration of Independence left them out. We do, however, have Constitutionally guaranteed rights against government power that are part of the Bill of Rights that was attached as amendments to the Unites States Constitution just after its ratification in 1788. They were separately ratified and became part of the Constitution in 1791. The first ten amendments are a listing of these rights. The Supreme Court enforces them unevenly, sometimes not at all, and sometimes simply cannot get a handle on how to deal with certain issues. Religious exercise is one of those issues. “Free Exercise” rulings are God’s way of reminding all of us that the Justices on the Court are human beings, and subject to the same failings and irrationalities that we all have as imperfect creatures on this earth.
Remember, there are X Amendments that give each individual rights against government power. However, the 1st Amendment is where the action often is, and the 1st Amendment contains some of the most basic (protected by courts) FUNDAMENTAL rights in our system. While the federal (and now) state governments cannot sponsor a particular religion for the nation or the state, the very first fundamental right in the 1st Amendment is the right of each person to the “free exercise” of religion or simply going to church or synagogue or mosque on the day relevant to that particular religion or several times a day if that is what is called for. Usually, when a Fundamental right is involved, especially one expressly written down as part of the four-corners of the Constitution, any abridgement of that right is looked at very closely by the Supreme Court and the standard of review regarding any government interference (state or federal) is strictly stated as having to have an important or compelling reason for imposing a restriction on an individual’s right to worship. The order of the rights listed in the 1st Amendment is not an accident. The Founders listed them in order of importance to the nation.
- The federal government may not pass a law that creates a national church or religion – this is the revolutionary doctrine of religious tolerance so unique in 1787
- The federal government may not pass a law that prohibits worship at the place of worship of one’s choice – some practices may be banned (human or animal sacrifice)
- The federal government may not pass a law that prevents free speech – as long as it is not obscene, in a public forum, on public policy, having met time, place and manner restrictions
- The federal government may not pass a law that restricts freedom of the press – unless defamatory
- The federal government may not pass a law that restricts peaceful assembly to petition the government for changes in the law – unless it engages in criminal acts
These restrictions on government power now apply to state governments through a modern doctrine to be discussed another time. So, the very first right listed is our right to worship as we please. It was listed first because religion is central to our culture and to our law. A belief in God undergirds everything about how we know right from wrong; how we retain humility; how we voluntarily comply with the Rule of Law, so that a police state does not have to keep public order. One would think the Supreme Court would carefully, almost breathlessly, protect this most important of all the rights in the Bill of Rights. You would be wrong. The Supreme Court treats religion in America like stepping on a piece of used gum on the sidewalk. Oh dear, how do I get this off my newly shined shoes? This is disgusting – ‘Why do people throw their gum on the sidewalk?’ Because our country tolerates all religion or non-religion the Court has somehow seen this as an antecedent to free exercise cases. They are almost beneath the dignity of the Court to discuss, like having to bend over to get the gum off one’s shoe. Two cases lately demonstrate decades of utter insensitivity by the Court to the number one Constitutionally protected right. With state governments passing restrictions on assembling because of the virus, California and then Nevada restricted how many persons could attend church (FREE EXERCISE OF RELIGION) but set a different standard for gambling and shopping at a supermarket. Petitions were filed by churches contending that the standard should be the same. If casinos are allowed to operate at 50% capacity then churches should also, practicing, as well, all other restrictions such as face masks and distancing and sanitizer, etc. The Supreme Court said that casinos are like supermarkets, but churches are like concerts. One can assemble more persons than the other. Huh? Instead of a percentage of capacity churches are restricted to a certain number no matter how large the church. This was considered “reasonable” by the Court.
Miss Constitution is afraid that she cannot make this stuff up. My prayers are now going to have to include the Supreme Court of the United States. They have collectively lost their minds.
Copyright©2020 by M. E. Boyd, Esq., “Miss Constitution”
info@missconstitution.com
