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OpEdNews Op Eds    H2'ed 11/27/20

'Religious Freedom' in the Time of Plague

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"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)

Chief Justice John Marshall. The man who knit together the structure of the Supreme Court as we know it, out of whole cloth:
Chief Justice John Marshall. The man who knit together the structure of the Supreme Court as we know it, out of whole cloth:
(Image by Wikipedia (, Author: Alonzo Chappel  (1828–1887)   )
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Supreme Court Justice Oliver Wendell Holmes, in referring to the limits on freedom of speech under the first Amendment to the Constitution, famously said words to the effect of "You cannot cry 'fire' in a crowded theater and have that count as 'free speech'."

Very late at night on November 26, 2020, the U.S. Supreme Court, in "Roman Catholic Diocese of Brooklyn, NY v. A. Cuomo, Gov. N.Y.," ruled 5 to 4 that public health rules adopted by the State to help control the rampaging pandemic (that is the "Trumpidemic2020Â ") could not be applied to the Diocese and to a Jewish congregation that had also joined the suit, because of the "free exercise of religion" clause of the First Amendment to the Constitution. As Justice Gorsuch said, in one of the concurring opinions (the majority opinion was not signed --- is Justice Barrett being shy?),

"Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay [an earlier case in which public health measures as applied to religious institutions were upheld], courts must resume applying the Free Exercise Clause. Today, a majority of the court makes this plain. We may not shelter in place when the Constitution is under attack. Things never go well when we do."

In a dissenting opinion, Justice Sotomayor, joined by Justice Kagan, wrote:

"Justices of this court play a deadly game in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily." ("Deadly" indeed.)

Indeed. For infectious diseases transmitted through the air, from person-to-person, large closely-knit (or even not so closely knit, because the behavior of every single member cannot be effectively monitored) gatherings endanger the health of those gathered as well as of persons with whom those present may subsequently come in contact. Numerous public health studies have proven this fact over many decades. Exempting large gatherings of religious folk from COVID-19 restrictions that will protect the health of the public in general, so that the religious folk may express their religious feelings and devotion, is the same as allowing a religious congregation to go over to a public water supply access point and move their bowels into it, just as long as in so doing they are expressing their sincerely held religious beliefs and faith. And according to this ruling, that is exactly what they could do. For, as Justice Gorsuch said, "courts must apply the Free Exercise clause."

Well, let's take a look at that and a couple of other parts of the Constitution that may also be applicable. For example, the Preamble, that is the Statement of Purpose for which the whole document is designed, has this to say:

"We the people of the United States, in order to form a more per fect Union, establish justice, insure domestic tranquility, provide for the com mon defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Consti tution for the United States of America."

Hmm. Allowing a religious congregation to engage in behaviors that the public health authorities of their State have determined might lead to the further spread of a very dangerous disease might be considered to be violative of domestic tranquility and contradictory to the general welfare, might they not?

And let's take a look at the other section of the First Amendment that deals with religion besides the "free exercise" clause: "Congress shall make no law respecting an establishment of religion . . ." Might not establishing a special exception for certain religious congregations that give them privileges that violate rules to promote the public health of the citizens of the be regarded as "establishing a religion" by giving them certain special privileges? Such as the freedom to move their bowels into a public water supply, if in so doing they would be sincerely expressing their religious faith?

This is to where the Trump Court has brought us: public health measures, designed to help protect the population as a whole, can be disregarded if one is really sincerely religious about the reasons for that disregard. It does not matter if, for example, that that action could affect me by leading to an overloaded hospital system (an event happening with increasing frequency around the country ["Covid Overload: U.S. Hospitals Are Running Out of Beds for Patients," click here]), which could, were I to become infected and need hospitalization, affect me quite negatively. Further, this line of reasoning circles back to the first Amendment and what it has to say about religion.

There is indeed the "free exercise of religion" clause but in modern times does its provision exclude me because I am an atheist? (And it happens that many of the founders, while not atheists, or at least admitted atheists, were Deists, which approach to God does not admit of one active in the current affairs of man. As a friend of mine describes it, it can be considered sort like the "Big Bang Theory" of the power and role of "God." And in dealing with the issues of contemporary times, it's sort of like atheism.) If such an exclusion does exclude me, that clearly contradicts the Establishment Clause, the clause that Justice Gorsuch clearly ignores in this instance. If the "free exercise" clause doesn't exclude me, then I clearly have an interest in having certain activities of religious folk curtailed, that is if public health authorities consider them to be in the category of "Superspreader Events" harmful to the public as a whole.

Broadening the argument, although many religious persons want to impose their religious views of matters such as "when life begins" and the right to abortion up to the time of viability on the rest of us, by the force of law --- making it illegal because their religious view is that life begins at the moment of conception --- I do not want to impose my atheism upon anyone else. For example, in my view anyone who doesn't want to have an abortion, for religious or other reasons, shouldn't have one. But at the same time, a group of believers on the Supreme Court have just indirectly harmed my health, on the grounds of "religious liberty."

They have imposed a position upon the whole nation that upholding the public's health somehow interferes with "religious liberty" for religious folk to get together in proven superspreader groups. That, to repeat, has the potential to overwhelm nearby health care delivery systems --- which could, were it to happen in my region, affect my health directly. Interestingly enough, the Pope is strongly in favor of the implementation of public health measures designed to limit the spread of the pandemic. That he, the leader of the religion of several of the Justices who have taken the opposite side to his in this case, is on my side is of great importance to me, particularly since I am career public health physician, (a Professor of Preventive Medicine for 43 years at the Renaissance School of Medicine at Stony Brook University [NY]).

The composition of this Court is clearly the result of the decisions of Senate Majority Leader Mitch McConnell in bringing (Justice Barrett) or not bringing (Judge Garland) nominations to the floor based how they might affect the Court's right-wing trajectory. As a result of those decisions, the Court has been packed with three Right-Wing Justices who are clearly not in favor of religious liberty for all of us, believers and non-believers alike, but only for certain sections of the believers group.

As is well-known, ironically, those Justices were nominated by a President who is regarded by many as the least religious of any of the occupants of the office. Trump may not know Scripture, or even how to hold a copy of the Bible. But he knows where he can get a significant chunk of his votes from. And he is firmly a believer in limiting the rights, civil and otherwise, of all who do not toe the line of the growing Republican-Christian Alliance (with a few ultra-religious Jews in the mix, for the time-being). With this Supreme Court decision, the Republican/Religious Right is clearly on the march in their attempt to take over this nation of ours, as I predicted 25 years ago it would do in my book "The 15% Solution: How the Republican Religious Right Took Control of the U.S. 1981-2022: A Futuristic Novel." Regardless of party, and regardless of personal religious beliefs, all those who believe in what the Constitution REALLY has to say about religious liberty ---as briefly described above --- this an oncoming force that we must unite against.

(Article changed on November 28, 2020 at 15:51)

(Article changed on November 28, 2020 at 18:21)

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Steven Jonas, MD, MPH, MS is a Professor Emeritus of Preventive Medicine at StonyBrookMedicine (NY) and author/co-author/editor/co-editor of over 35 books. In addition to his position on OpEdNews as a "Trusted Author, he is a Senior (more...)
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