On Friday, May 29, as cities burned, and with all the drama fit for a time just before midnight in Washington, D.C., the U.S. Supreme Court took the unusual step of batting down an emergency petition that claimed Gov. Gavin Newsom had violated Californians’ First Amendment rights and discriminated against religion, in pandemic orders that restricted gatherings, including at places of worship.
A Pentecostal church near San Diego had asked the court to intervene. A similar federal lawsuit was pending from the High Plains Harvest Church in Ault against Colorado Gov. Jared Polis – endorsed by the U.S. Justice Department’s Civil Rights Division. A week before, a three-judge panel of the 9th Circuit Court of Appeals had denied the emergency petition from California’s South Bay United Pentecostal Church, by a two-to-one vote. “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure,” the 9th Circuit stated.
Was this really the time to be doctrinaire about the First Amendment?
In 1946, Arthur Terminiello, a suspended priest from Birmingham, Alabama, traveled to Chicago to address the Christian Veterans of America. Railing against “Communistic Zionistic Jews” and the late Franklin D. Roosevelt, Terminiello excited a crowd of 800 inside the hall and more than 1,000 protesters outside. A riot ensued. Chicago fined Terminiello $100 for disturbing the peace.
In 1949, the U.S. Supreme Court, in a 5-4 decision, found the fine violated Terminiello’s First Amendment rights. Justice Robert Jackson, who had recently been chief U.S. counsel at the Nuremberg trials of Nazi war criminals, wrote a dissent – which the 9th Circuit cited in denying the California church petition. There was a danger, Jackson said, that if “the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
It is odd that a dissent on the wrong side of protections for free speech should resonate as an argument for necessity over rights. It is hard to see how Terminiello needed to be fined, as Justice William O. Douglas found, writing for the majority in that case. It is anyone’s guess whether it is what President Trump had in mind in 2016 when, defending his Muslim ban, he said, “Our constitution is great, but it doesn’t necessarily give us the right to commit suicide, OK?”
But Supreme Court Chief Justice John Roberts had something like that in mind when he joined a liberal quartet to turn away the California church in a five-four vote. The question of when restrictions on activities should be lifted during a pandemic “is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts stated in his majority opinion; which is why the Constitution leaves this “to the politically accountable officials of the state,” whose decisions “should not be subject to second-guessing” by judges who lack “background, competence and expertise to assess public health.”
The emphasis here on the accountability of elected officials rather than judges in a pandemic is refreshing. And it works both ways: Elected officials should consult with public health officials and, ideally, be guided by their recommendations, but elected officials should not defer or try to devolve their authority to them.
In a dissent, Justice Brett Kavanaugh said Newsom’s order “indisputably discriminates against religion.” Roberts, in his majority opinion, wrote, “The notion that it is ‘indisputably clear’ that the government’s limitations are unconstitutional seems quite improbable.”
That was a rare court smackdown – and a reassuring sign that the much-battered and suspect court, ripped from without by partisanship, nevertheless seems to be working as it should – at least this time.