New Jersey governor: I wasn't thinking about the Bill of Rights when I issued my stay-at-home orders

“That’s above my pay grade,” says an amiable Phil Murphy. Er, it is not, my man. That’s exactly your pay grade as chief executive.

Granted, he’s not a lawyer by trade, but he has a phalanx of lawyers at his disposal with whom he could have and should have consulted on this subject. How does a liberal go on Fox News in the middle of a pandemic, knowing he’s going to get grilled, and belch up an aw-shucks “I dunno” answer to a question about the First Amendment? Good lord.

Politicians from the New York tri-state area are routinely terrible on constitutional matters and this yutz is no exception.

Ric Grenell offered this counterpoint yesterday on Instagram:

Is Tucker right in suggesting that Murphy can’t prohibit religious gatherings under his stay-at-home orders? My guess is no but we’ll likely hear from the courts about that before too long. Murphy should have mentioned SCOTUS’s decision in Employment Division v. Smith, a famous ruling authored by — ta da — conservative hero Antonin Scalia. That was a case about a worker who was fired from his job for using peyote as part of a religious ritual. The state refused to provide him with unemployment benefits because peyote was illegal, making its use tantamount to workplace “misconduct.” How can it be misconduct when it’s part of my religion, said the worker? What about my constitutional right of free exercise? Result:

Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning…

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

If Murphy tried to ban *only* religious gatherings, that would be one thing. But if he’s banning all gatherings beyond a certain threshold of people, there’s no constitutional religious exemption from those laws. On the other hand, Scalia went on to say that the Court had at times struck down laws that “involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press…” Tucker’s point is that the stay-at-home orders infringe on religious freedom and on freedom of assembly. When two rights are implicated, might the result be different? We’ll see.

Although even then, it’s hard to understand why the religious nature of a gathering would matter. If the right of freedom of assembly trumps the state’s police power to limit gatherings during a pandemic, that right shouldn’t depend on whether a gathering is religious or not. Carlson’s focus on it is just him playing to his audience a little. Another way to think about this is: Does a state government have the constitutional power to eliminate religious exemptions from vaccination laws? New York did that last year for reasons similar to the stay-at-home orders now being issued, to protect public health. Arguably religious objections to vaccinations also implicate two different constitutional rights, free exercise and the “right of bodily autonomy” or right of privacy or whatever term of art is being used to justify abortion rights nowadays. If the state can require vaccinations over religious objections in the name of preventing contagion, why can’t it temporarily suspend religious gatherings for the same reason?

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