Emergencies Make Awful Law: Why are Casinos Treated More Favorably than Churches During a Pandemic?
by Alan M Dershowitz, Gatestone Institute:
If hard cases make bad law, emergencies make even worse law. Our case books are littered with awful judicial decisions authorizing presidents and governors to violate core constitutional rights in the name of coping with crises. President Franklin Delano Roosevelt’s decision to intern more than 100,000 Americans of Japanese descent following the attack on Pearl Harbor was upheld by liberal justices. President Abraham Lincoln’s decision to detain citizens and deny them access to the writ of habeas corpus was upheld during the Civil War. Now that that we are experiencing a pandemic crisis, if history is any guide, we can expect some bad decisions.
Consider the recent decisions of the Supreme Court to deny emergency relief to churches that have been subjected by states to restrictions that are more onerous than to casinos and other secular institutions and businesses. The churches sought emergency relief under their First Amendment right of the free exercise of religion. The Supreme Court, in two 5-4 decisions, has denied that relief, with the swing vote being cast by the deeply religious and strongly conservative Chief Justice John Roberts, who joined the four liberal justices. The other four conservative justices dissented in both cases.
The first amendment’s approach to religion is anything but clear or simple. It contains several relevant provisions: it prohibits “an establishment of religion.” It also protects against laws “prohibiting the free exercise” of religion. Finally, it guarantees “the right of the people peaceably to assemble,” although that provision seems geared more to political than religious assemblies — a distinction that may be difficult to make in an age in which everything, including religion, is political.
What does seem clear from these provisions and our long, if not always successful, effort to reconcile them in judicial decisions, is that the government may not discriminate against religion in general or any particular religion in particular. It need not exempt religious institutions or practitioners from rules that are generally applicable to similarly situated institutions or citizens, but it may not impose especially onerous rules on religion that limit its free exercise.
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