Sad state of affairs'. The usual mainstream-media suspects wasted no time in blasting as inappropriate Samuel Alito’s address last week to the Federalist Society. Which is another way of saying they didn’t like what he had to say. The Supreme Court justice warned that “religious liberty is fast becoming a disfavored right,” that freedom of speech is also “becoming a second-tier constitutional right.” He was exactly right — and his wake-up call was urgently timely: Democrats threaten to “reform” the high court by packing it with liberals, while the pandemic has imposed what Alito called a “stress test” on the Constitution, creating a new ranking order of fundamental rights.
The justice made clear that he wasn’t “diminishing the severity of the virus’ threat to public health,” nor even “saying anything” about whether lockdown rules are “good public policy.” Even so, “the pandemic has resulted in previously unimaginable restrictions on individual liberty” — and this happened “by executive fiat, rather than legislation.” The unchecked growth of the administrative state and the rule of unaccountable “experts” long precede the appearance of the novel coronavirus. What we have experienced in the last nine months is a sweeping away of legal norms that deserves more than a passing glance, even in the midst of an emergency.
Alito pointed out that in Nevada, the courts had deferred to the judgment of the governor of that state about how to halt the spread of the virus. The result was a rule that allowed casinos to operate while severely restricting the right to attend a house of worship. We’re supposed to think that these kinds of arbitrary and illogical rules are kosher; anyone who notices that something is very wrong is framed as either a partisan troublemaker or a “conspiracy theorist.”
As Alito noted, treating the right to render worship to God as being as important as the right to gamble shouldn’t have been a “tough call.” If you look in the Constitution, “you will see the Free Exercise Clause of the First Amendment, which protects religious liberty.” But “you will not find a craps clause or a blackjack clause or a slot-machine clause.” And yet the courts let those restrictions stand, just as they have elsewhere, including in New York, where the state and the city have cracked down hard against believers for violating COVID-19 rules while cheering other events, such as Black Lives Matter riots or Biden victory celebrations — barely even bothering to hide that political or theological content is the deciding factor.