The argument of the Lincoln administration during the Civil War for trying American citizens before military commissions was "necessity" created by the existence of the Civil War. The argument of the Governors today for closing churches, or severely limiting the number of worshipers allowed to attend, is also "necessity" created by the existence of the Covid pan-demic.
So does "necessity" or "emergency" allow or justify Governors to suspend the Constitutional Rights of the American people?
In 1866, The U.S. Supreme Court decided the great case of ex parte Milligan. Milligan was tried by a military commission in Indiana and sentenced to death. On appeal, Milligan con-tended that the military commission had no jurisdiction to him. He argued that "it was the birthright of every American citizen, when charged with a crime, to be punished only accord-ing to law, and therefore, that he was entitled under the Constitution (1787) to a trial by jury, all the rights attendant thereto specified by the Fourth, Fifth and Sixth Amendments to the Constitution.
The Court agreed with Milligan.
"The Constitution ... is a law for rulers and people, equally in war and in peace. and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provision can be suspended during any of the great exigencies of government. Such a result leads directly to anarchy of despotism ...."
The court the proceeded to consider which of any of our Constitutional rights could be sus-pended during an emergency. It concluded, that only the right of Habeas Corpus could be suspended.
"Not one of these safeguards can the President or Congress or the Judiciary disturb, except the one concerning the writ of habeas corpus." Indeed, the Founding Fathers "limited the suspension to one great right, and left the rest to remain forever inviolable." The court concluded by holding, "Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction."
Today, the courts are clearly open, the exercise of their jurisdiction is wholly unobstructed. Yet in May of 2020, Chief Justice John Roberts wrote a concurring opinion in South Bay Penticostal Church v. Newson that flies in the face of everything stated in ex parte Milligan.
Gov. Newson's Covid guidelines limited church attendance to 25% of building capacity or a maximum of 100 attendees.
The Chief Justice brushed aside the Constitutional Right of Free Exercise of Religion, in his concurring opinion.
"Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with "Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.
The Chief Justice justified his ruling stating
Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” ... When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” ... Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary ...."
Roberts' opinion utterly ignores the fact that while the "free exercise of religion" is expressly guaranteed by the First Amendment, "secular gatherings" enjoy no such express guarantees.
On November 25, 2020, the issue was again considered by the high court in Roman Catholic Diocese of Brooklyn and Agudath Israel v. Cuomo.
In New York, Gov. Cuomo issued an executive order, creating "color zones." In "red zones" house of worship were limited to 10 people; in "orange zones" to 25. In "red zones," business the Governor deemed "essential" - such as liquor stores and acupuncture centers - may ad-mit as many people as they wish.
The Church and the synagogue contend that these restrictions violate the Free Exercise of Religion Clause of the First Amendment, by treating houses of worship much more harshly than comparable secular facilities. Both argue, without contradiction, they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.
In striking down Gov. Cuomo executive order, the court echoed ex parte Milligan.
"Members of this Court are not public health experts, and we should respect the judg-ment of those with special expertise and responsibility in this area. But even in a pan-demic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure."
In his concurring opinion, Mr. Justice Gorsuch writes,
"Government is not free to disregard the First Amendment in times of crisis. At a mini-mum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available ..."
Like Roberts, the majority recognizes that governors have a "compelling interest" in protect-ing public health. But when First Amendment rights are also being curtailed, the majority sees a duty to conduct a serious examination of the need for such a drastic measure." Justice Gor-such would require that the remedy be the "least restrictive alternative."
Compare the concurrences of the so-called "Conservatives. "Roberts comes heavily down on the side of executive power. Gorsuch sees the "compelling interest," but refuses to ignore the First Amendment.
First Published in the Moline Dispatch and Rock Island Argus on December 5, 2020
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