By John Yoo and Scott Atlas

February 8, 2021

The US Supreme Court on Friday made clear to Team Biden and state governors that the fight against the pandemic doesn’t give them a blank check against individual liberties.

In South Bay United Pentecostal Church v. Newsom, the high court struck down a California emergency regulation that prohibited all indoor religious services. Six justices held that Gov. Gavin Newsom had violated the First Amendment by subjecting religious groups to a complete ban, even while groceries, public transit and retail shops remain open.

Americans accepted a broad — but temporary — lockdown of society to slow the pandemic a year ago. Yet many still live under unprecedented restrictions: business and school closures, travel bans, curfews, quarantines, limits on groups and mask mandates.

Whatever the health benefits of these diktats (and many are questionable), they have been handed down with shocking disregard for the costs: strokes uncared for, cancers left undetected, psychological anguish (especially among young adults), skyrocketing domestic abuse and harm to children from lack of in-person schooling. Unemployment from lockdowns, meanwhile, will cause 890,000 additional US deaths over the next 15 years, according to a recent study.

Lockdowns also inflict great harm upon liberty. Governments overrode the rights to meet, work, speak, worship or organize. Bureaucracies decided which businesses could open and which should die.

Our legal system understandably defers to the executive branch during an emergency, when swift action can save lives. The Constitution, Justice Robert Jackson famously wrote, “is not a suicide pact.” Emergency policies may prove imperfect, but our legal and political systems accept more mistakes during emergencies or war, because the costs of inaction are far higher.

Still, our system doesn’t permit permanent dictatorial powers in the face of contrary data. In California, for example, the governor can unilaterally exercise any and all authority vested in the state, such as to impose quarantines and curfews, ration goods and services and regulate or even prohibit any economic and social activity.

Many states have kept their restrictions, including those without sound basis. Schools, churches and offices remain closed in many blue states. Governors continue to make arbitrary distinctions: Big-box stores can sell the same goods that small shops can’t; bars close after specific hours, as if the virus works on a schedule; restaurants couldn’t operate indoors, even when Gov. Cuomo’s own data showed that they are responsible for a minuscule share of viral spread in New York.

Public support evaporates when edicts defy common sense.

It is in these inconsistencies that individual liberty has begun its comeback. In the vanguard are the religious minorities and other disfavored groups specifically protected by the Bill of Rights. In a case similar to its ruling last week, the Supreme Court last Thanksgiving blocked New York’s limits on Catholic and Jewish services.

As in California, New York violated the Constitution by singling out religious groups. The majority found that Cuomo could produce “no evidence” that religious groups “have contributed to the spread of COVID-19” and couldn’t explain why less intrusive measures couldn’t work instead. Last week, the court made clear that Newsom and Cuomo used the guise of the pandemic to harass religious minorities.

Our courts must now decide whether to extend protection of religion to other freedoms, such as a basic right to earn a living. Los Angeles officials responded to November’s second wave by limiting restaurants only to take-out. Even the most minimal review found such measures groundless. According to a California restaurants’ lawsuit, lockdowns will force thousands of businesses to close and destroy 700,000 jobs, 75 percent held by those earning less than $50,000 a year and 60 percent by people of color.

Courts should demand that governors show real evidence to justify such destructive consequences. California’s own data showed that only 3.1 percent of new, non-residential cases originate from restaurants — a figure far smaller than other sectors open for business.

As the pandemic enters its second year, Americans will continue to demand evidence to justify the severe restrictions on their liberty. Lockdowns interfere with the constitutional rights to free speech and religion and the economic liberty of owners and workers. Government leaders must persuade the public with proven facts and transparent decisions. Americans, our judges especially, should expect no less.

Scott W. Atlas, a special adviser to President Trump in 2020, is a senior fellow at Hoover Institution, where John Yoo, a professor of constitutional law at UC Berkeley, is a visiting fellow.