This week, President Donald Trump has pledged that he will “override” state orders barring in-person religious services unless governors do so. As I have previously noted, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President. This issue could be coming to a head with the split decision of a panel in the Ninth Circuit late Friday to uphold the order Gov. Gavin Newsom barring large in-person religious services. Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. The Administration can, and has promised, joined legal challenges to such state orders but it is not claiming the inherent authority of presidents to “override” state decisions. The Justice Department has warned Newsom that his order is contravening constitutional rights.
As I have previously discussed, courts tend to afford great deference to the federal and state governments in the imposition of public health measures in a pandemic. However, such orders become more difficult to maintain in time, particularly when juxtaposed against constitutional rights like the free exercise of religion. There are legitimate concerns over the denial of such rights as other areas open despite having similar levels of participation.
The Ninth Circuit decision split over the statewide shelter-in-place order of March 19, which allows some businesses to reopen but has deferred reopening sites of large in-person gatherings.
Judges Barry Silverman and Jacqueline Nguyen reflected the deference afforded to governors by emphasizing “We’re dealing here with a highly contagious and often fatal disease for which there is presently no known cure.”
In my prior writings, I stated that courts are likely to cite Justice Jackson’s “suicide pact” quote, which I have long criticized but is more relevant here.
“This may be the most compelling use of the belief that the Constitution “is not a suicide pact.” I have been critical of that often repeated reference by those who want to ignore fundamental rights. It was originally attributed to Abraham Lincoln after he had violated the Constitution by unilaterally suspending habeas corpus. It is more often attributed to Supreme Court Justice Robert Jackson, without noting that he used the line in one of his most reprehensible opinions, a dissent to the Supreme Court extending protections to a priest arrested for his controversial speech.”
In dissent, Judge Daniel Collins objected that his colleagues were not exercising any meaningful degree of scrutiny: “I do not doubt the importance of the public health objectives that the State puts forth, but the state can accomplish those objectives without resorting to its current inflexible and overbroad ban on religious services.”
The two opinions are excellent examples of the opposing views that are likely to be heard among judges across the country. Indeed, with the passage of time, this could easily flip. Some courts have already enjoined state orders and the scrutiny over the basis for such orders will increase, particularly as other states relax their own rules.
This however is the natural progression of such challenges. What will not be upheld is any presidential edict to states to open their churches. Federalism is based on the very principle that the federal government, let alone a president unilaterally, has no “override” on the states on such matters. The Constitution can supersede such state decisions that that is not a unilateral presidential power.
Here is the opinion: Ninth Circuit Decision