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Biden Cabinet Pick Defended Unconstitutional Religious Restrictions

Senate GOP to grill HHS nom Becerra on unconstitutional worship restrictions

HHS nominee Xavier Becerra / Getty Images
• February 10, 2021 4:00 pm

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The Supreme Court on Friday struck down unconstitutional coronavirus restrictions that Biden cabinet nominee Xavier Becerra defended as California attorney general.

Becerra, President Biden's pick to lead the Department of Health and Human Services, enforced California's restrictions on economic and religious activity throughout the coronavirus pandemic and defended the ban on indoor in-person religious worship in the state.

The Supreme Court rejected these restrictions and sided with two California churches challenging California's lockdown in a decision late last week. Senate Republicans said that Becerra's enforcement of the COVID restrictions will be an issue during his confirmation.

"For nearly a year, we have seen state and local governments shut down houses of worship while they let bars, gyms and other indoor facilities operate," Sen. Marco Rubio (R., Fla.) said. "The Biden administration and HHS nominee Xavier Becerra should make clear they now understand this type of discrimination against houses of worship is clearly unconstitutional."

Sen. Mike Braun (R., Ind.) said that committee Republicans plan to press Becerra on how he enforced lockdown orders on economic and religious activity. Becerra must be "held accountable" for the lockdowns before taking charge of one of the most powerful public health agencies in the world, Braun said.

"He would worry me about taking a heavy-handed government approach to any issue out there, especially coming from a state like California that was so draconian on sheltering at home, shutdowns," Braun said. "I've found that churches, schools, businesses in general have had a great respect for following the main guidelines."

The Supreme Court struck down the state's outright ban on in-person indoor worship services while leaving in place bans on singing and chanting. The 6-3 decision was the latest in a string of rulings that have established that constitutionally protected activity such as religious worship cannot be treated more harshly than other secular activity. The High Court partially lifted the state's restrictions, which had banned any indoor in-person worship service from proceeding because of concerns over the spread of COVID-19.

The state's "present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake," Chief Justice John Roberts said in the decision. "Deference, though broad, has its limits."

Becerra did not respond to a request for comment on his defense of the restrictions in court. He defended the restrictions as "carefully structured" and proportional to the crisis. Attorneys involved in the argument at the Supreme Court said the decision marks a turning point in how the High Court views COVID restrictions on constitutional rights.

"The Court just reached a point where they said we're going to give the government some deference here because we understand that this is a difficult situation, but at some point, we've reached the tipping point, and we're not going to tolerate this any longer," Nick Reaves, legal counsel at the Becket Fund, said.

Charles Limandri, special counsel for the Thomas More Society, which argued the case before the Supreme Court, said the justices firmly rejected Becerra's arguments. The ruling, he said, would help to limit government overreach from both state and local officials.

"When the next pandemic comes along, the courts are going to be much more acutely aware of this issue and less likely to give broad discretion across the board to the governors and public health officials who don't seem to appreciate that the free exercise of religion for many people is worth the risk of getting the flu or COVID-19,"Limandri said.

The White House did not respond to a request for comment on Becerra's nomination.