What happens when courts serve neither the law nor justice? Can liberty in America survive when courts attempt to be experts in everything except what they are delegated to do? You may have heard about the California church that recently received an injunction from the Supreme Court against Governor Newsom’s tyrannical restrictions against churches in California. However, just as the magician distracts his audience while performing the trick out of sight, this injunction is not a win for liberty in the Golden State, it is a knife in the back to the rights of all Americans.
The South Bay United Pentecostal Church has petitioned the Supreme Court to hear its case (issue a writ of certiorari) against Gavin Newsom as Governor of California. While waiting for the court’s decision on the writ, South Bay Pentecostal has asked for injunctive relief from California imposing these restrictions until the case is decided by the court. These restrictions include the state’s tier 1 prohibitions against indoor worship, along with capacity limits and prohibiting singing or chanting. The injunction issued by the court says the state cannot enforce some of the tier 1 prohibitions, but leaves in place the capacity limits as well as the prohibition on singing and chanting. While some in the faith community have hailed this as a win, both the restrictions left in place and the reasons the justices gave for their opinions show that liberty is now in the hands of nine high priests in black robes and that the rule of law is dead.
Justices Opinions
The opinions of the justices were all over the map. Justices Thomas and Gorsuch would have granted the injunction in full. Justice Alito would have granted the injunction against capacity restrictions and indoor singing and chanting, but would have stayed the injunction for 30 days to give the state the chance to demonstrate that these restrictions were the only way to reduce the spread of COVID. Chief Justice Roberts concurred with the partial grant of the injunction, and gave a reason for it that I will explore later. Justice Barrett, who was joined by Justice Kavanaugh, wrote the court’s opinion. Meanwhile, Justices Kagan, Breyer, and Sotomayor dissented.
Let’s start with the court’s opinion, written by Justice Barrett, joined by Justice Kavanaugh.
The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record. As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue.
Justices Barret & Kavanaugh – SOUTH BAY UNITED PENTECOSTAL CHURCH, v. NEWSOM, – ON APPLICATION FOR INJUNCTIVE RELIEF
Once again, we have the Supreme Court ignoring the law and placing their opinions as paramount. While this is not a First Amendment case, the court is using their Free Exercise “jurisprudence” as justification for their position. Contrary to the so called experts, since Congress did not pass this law this is not a violation of the First Amendment. It is, however, a violation of Sections 2 and 4 of Article I of California’s Constitution:
A law may not restrain or abridge liberty of speech or press.
CA Constitution, Article I, Section 2
Free exercise and enjoyment of religion without discrimination or preference are guaranteed.
CA Constitution, Article I, Section 4
This is also a violation of the due process requirements in both the Fifth and Fourteenth Amendments to the U.S. Constitution.
No person shall be … deprived of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment V
nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV
The court seems to think it’s quite acceptable to abridge the freedoms of worship and speech, not to mention to deprive people of their liberty and property without due process, as long as it is done equally. According to Justice Barrett, if the state abridges the rights of both churches and Hollywood studios, that’s just fine. This position is confirmed by Justices Gorsuch, Thomas, and Alito in their concurrence.
Often, courts addressing First Amendment free exercise challenges face difficult questions about whether a law reflects “‘subtle departures from neutrality,’” “‘religious gerrymander[ing],’” or “impermissible targeting” of religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah. But not here. Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own row. At “Tier 1,” applicable today in most of the State, California forbids any kind of indoor worship. Meanwhile, the State allows most retail operations to proceed indoors with 25% occupancy and other businesses to operate at 50% occupancy or more. Apparently, California is the only State in the country that has gone so far as to ban all indoor religious services.
Justices Gorsuch, Thomas, and Alito – SOUTH BAY UNITED PENTECOSTAL CHURCH, v. NEWSOM, – ON APPLICATION FOR INJUNCTIVE RELIEF
Again, these justices ignore the language of the First Amendment and apply their own opinions to how the Freedom of Religion should be protected. As long as a state is an equal opportunity infringer of people’s rights, the court is more than willing to place their blessing on the tyranny. Gorsuch goes on to show just how corrupt the entire federal judicial system has become:
When a State so obviously targets religion for differential treatment, our job becomes that much clearer. As the Ninth Circuit recognized, regulations like these violate the First Amendment unless the State can show they are the least restrictive means of achieving a compelling government interest.
Justices Gorsuch, Thomas, and Alito – SOUTH BAY UNITED PENTECOSTAL CHURCH, v. NEWSOM, – ON APPLICATION FOR INJUNCTIVE RELIEF
Justice Gorsuch points out that not only has the Supreme Court substituted their own opinion for the supreme law of the land, it appears the inferior courts have as well. Where does the Constitution say that speech, religion, or any right it protects, can be infringed if the government claims a compelling interest? The answer is nowhere. And where does the Court get the power to place their predecessor’s opinion in the case Church of Lukumi Babalu Aye, Inc. v. Hialeah above not only the supreme law of the land, but the oaths the justices took upon taking office? The answer is also nowhere. What officials in California are doing is more than simply promise breaking; this is a criminal act.
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both;
18 USC §242
Now these justices are accessories after the fact. By depriving the citizens of California their rights under color of what they themselves call law, they are just as criminally liable as Gavin Newsom.
Judicial Malpractice
As if the court’s malfeasance were not bad enough, Justice Roberts in his concurrence and Justices Kagan, Breyer, and Sotomayor in their dissent go beyond sophistry to judicial malpractice!
As I explained the last time the Court considered this evolving case, federal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.”
Chief Justice Roberts – SOUTH BAY UNITED PENTECOSTAL CHURCH, v. NEWSOM, – ON APPLICATION FOR INJUNCTIVE RELIEF
While I agree that, in general, courts should defer to elected officials, that should only be when they are exercising the powers delegated to them within the laws and the Constitutions of the United States and their state. Why should the court submit themselves to the opinions of supposed experts in public health? Is it because they have shown themselves to be infallible in their field of expertise? Is it because of cultish devotion to those we call experts? Or, as Justice Kagan wrote in her dissent, has the court given up even the pretense of exercising judicial power in favor of policy making?
Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic.
Justices Kagan, Breyer, and Sotomayor – SOUTH BAY UNITED PENTECOSTAL CHURCH, v. NEWSOM, – ON APPLICATION FOR INJUNCTIVE RELIEF
Court justices are not supposed to be scientists or public health experts, they’re supposed to be experts in the law, including the supreme law, the Constitution. They’re not delegated the power to make judgments based on policy, politics, or pandemics. Their only standard should be the law. Whenever they place something above the law, they are committing malpractice.
a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill or learning by one (such as a physician) rendering professional services which results in injury, loss, or damage
Malpractice – Merriam-Webster Dictionary
This alone should be sufficiently bad behavior for a justice to be disqualified from holding office.
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,
U.S. Constitution, Article III, Section 1, Clause 1
Yet instead we have the federal judiciary giving their blessing to the infringement on the rights of the people of California, not to mention the rest of the country. And the American people stand for it.
Conclusion
This case is another reason why the American people cannot trust the courts with their liberty. As if we needed more evidence of that fact, we have seven of the nine justices on the Supreme Court not only complicit in the destruction of the rights of the people of California, but condoning it as well, at least in part. Three of those nine justices are more than happy to have officials in the State of California trash free speech, and freedom of religion, liberty and property rights, simply because someone they deem an expert tells them it’s OK. Forget rights, forget the rule of law; this is the exercise of tyrannical power, and a foreshadowing of what America will look like in a few years if We the People don’t stand up and regain control of our public servants.
The people — the people — are the rightful masters of both Congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it
Abraham Lincoln, [September 16-17, 1859] (Notes for Speech in Kansas and Ohio)
If we are the rightful masters of both Congresses and the court (I believe President Lincoln might have meant legislatures, since only that national legislature is called Congress) then this mess is our fault. Our job is not to overthrow the Constitution, but to return it to its rightful place.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Constitution, Article VI, Clause 2
You may not feel prepared to stand against those in government. This is not surprising since the government run educational system has been indoctrinating generations into servitude for decades. But the cause is not lost.
I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.
From Thomas Jefferson to William Charles Jarvis, 28 September 1820
If we are to restore liberty and justice to America, we must take the advice of these two Presidents. We must again become the masters of the legislatures and the courts. We must use the Constitution to overthrow those who pervert it. And if we think we are not enlightened enough, then we must inform our discretion with education. That is the purpose of The Constitution Study, the mission that drives our days. To enlighten and inform by education with the truth of the original documents. To empower the citizens of this nation to exercise their powers, restore the government to the consent of the governed, and overthrow those who are perverting not only the Constitution, but liberty and justice as well.
If we will not overthrow those who pervert the Constitution at the ballot box, we will doom our children either to live as slaves or to overthrow them with violence. And they will rightly curse us for leaving to them the difficult task of restoring liberty because we were unwilling to keep it while the task was simple.
