OPINION:
Recently, Dr. Anthony Fauci, the former director of the National Institute of Allergy and Infectious Diseases, admitted that there is no scientific support for his “6-foot rule” that became a de facto nationwide social distancing law.
Some businesses never recovered, and our economy is still suffering from the consequences of Dr. Fauci’s edicts. To make matters worse, our nation’s courts were complicit with Dr. Fauci. Instead of being a bulwark that protects our fundamental rights, our courts were often bulldozers that trampled the Constitution.
Our Supreme Court was no exception.
The Supreme Court’s recent string of decisions favorable to religious liberty should be celebrated, of course. But despite those important victories, some of the justices demonstrated an alarming degree of deference to Dr. Fauci and others. As a consequence of Dr. Fauci’s arbitrary edict, a majority of the court ruled that houses of worship should remain closed while casinos could remain open. And it is no defense to suggest that the nation was in the midst of a pandemic.
Legal scholars and historians surely remember one of the saddest chapters in Supreme Court history: Korematsu v. United States. In Korematsu, the court upheld the government’s shameful decision to forcibly remove Japanese Americans from their homes and send them to internment camps during World War II. Despite no evidence that these U.S. citizens were disloyal — indeed, there was overwhelming evidence to the contrary — the court reasoned that the state of emergency required substantial deference to the government’s “expert” decisions.
In dissent, Justice Robert Jackson cautioned against such judicial deference in the absence of supporting evidence. Jackson warned that judges who grant too much deference to government officials will deal “a far more subtle blow to liberty” than the underlying emergency itself.
As Easter 2020 approached, because of government bans on in-person gatherings, many churches sought creative ways to observe one of the holiest days on the Christian calendar.
On Fire Church in Louisville, Kentucky, one of our clients devised an ingenious “drive-in” Easter service whereby churchgoers stayed in their vehicles and listened to the service via FM radio. But the city’s mayor, emboldened by Dr. Fauci’s faux science, threatened to prosecute those who defied his stay-at-home order. Only when the church intervened and sued the mayor was the Easter service allowed. It was the nation’s first major religious liberty win against COVID-19 authoritarianism.
Unfortunately, it proved the exception and not the rule.
When other churches across the nation began to challenge blatant religious liberty violations, most courts rubber-stamped the government’s orders and edicts that lacked any scientific basis. Worse, those judicial decisions also often lacked any basis in law.
“Two weeks to flatten the curve” soon became an excuse to flatten the Constitution. Yet as 2020 wore on, Americans grew skeptical of Dr. Fauci’s faux scientific proclamations.
As most states began relaxing or eliminating COVID-19 restrictions, California doubled down by imposing some of the most extreme restrictions in the nation, including a ban on in-person services in places of worship, while liquor stores, shopping malls and laundromats remained open. When two prominent churches challenged California’s draconian rules, many hoped the Supreme Court would deliver a fatal blow to COVID-19 authoritarianism. But those hopes were soon dashed.
In a 5-4 decision, the Supreme Court rejected the churches’ application for emergency relief. Not until the following year did the court finally issue the relief it initially denied. The court’s reliance on Dr. Fauci and unelected, unaccountable government officials dealt the far more subtle blow to liberty against which Justice Robert Jackson warned long ago.
Now that Dr. Fauci has come clean that he misled the country, there must be accountability to ensure history is not repeated. Will the courts learn?
Our natural inclination is to rely on experts to equip us with timely and accurate information in order to make decisions that will advance life and liberty in accordance with the rule of law. But when those experts withhold the truth or, worse, distort it, we must be able to rely upon our courts to restore constitutional order, not compound the problem.
Regrettably, it took the Supreme Court 40 years to admit its error in Korematsu and 35 more years to overturn it. As the Rev. Martin Luther King Jr. wrote, “justice too long delayed is justice denied.”
History should teach us to maintain a healthy skepticism of unelected, unaccountable experts. It also teaches us that the human desire for security leaves us susceptible to tyranny. Religious liberty is not easily taken by force; we are far more likely to lose it by abdication to experts — whether medical, legal or otherwise — than by coercive means. As Americans, we must remain vigilant to guard and protect religious freedom each day, or we risk losing it forever.
• Kelly Shackelford is president, CEO and chief counsel of First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. First Liberty represented On Fire Church in Kentucky. Learn more at FirstLiberty.org.
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