The Supreme Court’s decision late yesterday to spurn a plea from a Coast congregation that wants to hold services during the pandemic reminds us of another yarn by President Reagan. It’s the one involving the fellow who was on the witness stand when one of the lawyers said to him:
“While you were lying there at the scene of the accident, didn’t someone come up to you and ask you how you were feeling? And didn’t you answer that you never felt better in your life?”
“Yes, well, yes,” the fellow said, “I guess I remember that happening.”
Later, on redirect, as the Gipper gave it out, another lawyer was asking a question and said, “What were the circumstances when you gave that answer?”
“Well,” the witness said, “I was lying there and a car came up and a deputy sheriff got out. My horse was neighing with pain and kicking. He had two broken legs. The deputy sheriff put the gun in his ear and put the horse out of his misery. My dog had a broken back and was whining with pain, and the deputy and did the same thing, took the gun and shot him. Then he came over to me and said, ‘And how’re you feeling?’”
The moral, of course, is that, in law like so much else, context can be dispositive. Which is how we feel about the Nine’s refusal to come to the aid of a South Bay, California, United Pentecostal Church that feels its free exercise rights have been violated by restrictions laid down by Governor Newsom. The governor is restricting how many persons may worship in the church at one time to 25% of the church’s capacity.
The church reckons such restrictions are more onerous than apply to other, no more essential organizations — like, say, restaurants or supermarkets. No doubt there are those who are horrified at the idea that religious worship is an essential. Yet we know of communities — and individuals — who have risked the lives of their own, their families, and friends to carry out their religious obligations or to get to.
We understand it’s a close call. The Nine themselves were divided, five to four, with Chief Justice Roberts joining the Obama and Clinton judges against the church. The two Bush and two Trump justices sided with the church. There was less sturm and drang from the Chief Justice than there was in, say, the Obamacare case. We don’t mind saying, though, that we were with the dissenters.
The key is — like President Reagan’s yarn about the accident victim on redirect — the context. The South Bay United Pentecostal Church is but one of hundreds of congregations who have had to retain legal counsel to be able to worship God the way they believe they are obligated to do. By no means all of the disputes may have to do with the pandemic.
One church in Michigan, Hosanna Tabor, had to go all the way to the Supreme Court to keep the Equal Employment Opportunities Commission trying to regulate its hiring of its ministers (it won). Orthodox Jews in New York have had to go to court to keep the city’s Department of Mental Hygiene from trying to regulate circumcision.
A group of religious merchants in Williamsburg, Brooklyn, had to go to court to retain the right to enforce in their shops a dress code for men and women no more restrictive than the fancy restaurants maintain in Manhattan. Famously, the Little Sisters of the Poor had to make several trips to the Supreme Court to keep from having to buy for their employees insurance covering birth control. The Little Sisters of the Poor!
It’s hard to imagine what some of the smaller congregations might do were it not for a band of religious freedom law firms — the Becket Fund, say, Alliance Defending Freedom, or, in the case of the South Bay United Pentecostal congregation this week, the Thomas More Society. The broad point is that it would be a sad day in America were the fear of God to become a reason to fear the government.