As 2020 is drawing to a close, we all hope that we are seeing the light at the end of the tunnel in this year of the pandemic. The advent of vaccines is hopeful, yet the United States and other nations face a third wave of COVID infections. And as municipal and state governments impose new restrictions, there is growing concern about impacts on individual liberty and religious freedom.
In a recent speech to the Federalist Society, Supreme Court Justice Samuel Alito said, “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020… the COVID crisis has served as a sort of constitutional stress test. And in doing so it has highlighted disturbing trends that were already present before the virus struck.” Alito went on to cite numerous court cases impacting the free exercise of religion as indicative that “religious liberty is in danger of becoming a second-class right.”
Last month the Supreme Court sided with the Catholic Diocese of Brooklyn and an Orthodox Jewish congregation. In a 5-4 decision, the court ruled that New York could not restrict religious gatherings more than others. In the opinion, Associate Justice Neil Gorsuch wrote, “There is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
In a similar case resolved just last week, the Catholic Archdiocese of Washington, D.C. filed a suit in federal court against Mayor Muriel Bowser. The mayor had imposed a numeric limit of 50 on religious gatherings, no matter the size of the facility, whereas businesses were limited to a percentage of capacity. Fortunately, the city reneged and issued an amended order that treats religious congregations the same as other entities. But it took a lawsuit to get there.
The disturbing trends referenced by Alito are all too familiar to religious leaders, many of whom are alarmed by growing bias and overreach by government officials and the courts, and concerned about protecting their rights to the free exercise of their faiths. Another example of this concern is a case before the District of Columbia Superior Court. Earlier this month, Judge Jennifer M. Anderson issued a “remedies judgement” in the controversial Family Federation for World Peace and Unification International et al v. Hyun Jin Moon et al case, which totally disregards the defendants’ First Amendment rights and due process. The case is sure to be continued through the appeals process.
This case before the D.C. Superior Court involves protracted disputes within the Unification Movement founded by the late Rev. Sun Myung Moon. Though it was initially and properly dismissed on First Amendment grounds because it clearly involved religious disputes in which courts cannot intervene, this complex and extremely costly case has been extended by subsequent rulings for more than nine years.
It is well-established legal precedent that the First Amendment prohibits the courts from interfering in disputes about the teachings and leadership of religious groups. Yet that is precisely what the D.C. court has done in this case. As evident in both summary judgement and remedies rulings, the court disregarded voluminous evidence of an emerging religious movement wrestling with issues of succession and doctrine. It decided that it could sidestep First Amendment prohibitions and evaluate the religious purposes of UCI, a D.C. non-profit corporation established to advance the principles and work of the Unification movement. In doing so, the Court in effect took sides in a religious schism.
The onerous actions taken by the D.C. Court in its remedies ruling of December 3 are cause for great alarm among religious and nonprofit leaders alike. Based on its unconstitutional evaluation of UCI’s religious purposes, the court found that four directors had breached their fiduciary duty, ordered them removed from the board, and made them personally responsible for crushing financial penalties. This severe judgment was imposed even though in its ruling, the court itself acknowledged that the four directors had not received any personal benefit.
So why does this matter? The D.C. Superior Court’s rulings in this case have trampled upon First Amendment protections, making determinations about religious teachings and leadership, and thereby taking sides in a schism. Such dangerous precedents make all religious groups more vulnerable to government intrusion. The court took the unprecedented step of removing a majority of the directors of this nonprofit’s board, seriously overstepping its authority and disregarding requirements specifically articulated in D.C. law. Board members of every nonprofit incorporated in the District of Columbia should be alarmed about the details of this case, for there could be dire extralegal ramifications should they face any disputes before the D.C. court.
It should also concern people of all faiths that the courts are often all too ready to use such cases as opportunities to expand their powers and authority. Judicial overreach opens a Pandora’s box of government encroachment into religious expression and free exercise. It can, and often does, lead to protracted legal battles; distracting religious organizations and nonprofits from their primary missions; and forcing them to bear heavy costs to defend themselves.
If judges can decide what aspects of your faith are valid, or what is not in the public interest, the implications for religious freedom are vast. It opens the door for government, not God, to be the final arbiter of the human conscience.
Commenting on such current challenges to religious freedom, Bishop Paul Murray, chairman of the Religious Freedom Commission of One Way Churches International, noted, “Judicial overreach is a growing concern for faith leaders of all backgrounds. Freedom of religion, belief and conscience is our first and most fundamental right. Rulings like the ones in this case remind us that we must be vigilant and stand together to safeguard the First Amendment rights of all.”
Howard C. Self is the president, Right To Believe, a not-for-profit organization fighting to protect religious rights from undue governmental interference.