Hypocrisy, Religious Liberty, and COVID-19
By: Eric Allen
Tags: Covid-19, Religion, Politics, Liberty

Religious liberty has taken a backseat to these extreme social distancing regulations. Nowhere is that more evident than in the state of New York.

Governor Andrew Cuomo’s Executive Order 202.68 is extremely hostile to places of worship. The order lays out a color-coded system that includes “red” and “orange” zones. In the “red zones”, no more than 10 people are allowed to attend each religious service, and in “orange zones”, 25 are allowed to attend.

Thankfully two religious organizations, the Roman Catholic Diocese of Brooklyn and the Agudath Israel of America challenged these restrictions as violations of the Free Exercise Clause of the First Amendment and petitioned the Supreme Court of the United States to stop the enforcement of that order.

The Supreme Court granted their petition to stop New York from enforcing these regulations finding that even though once the issue was presented to the court the Governor changed his order there was nothing stopping him from changing back to the old system any time he wanted.

I want to highlight a few quotes from Associate Justice Neil Gorsuch:

“ Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. (See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles. Today’s case supplies just the latest example. New York’s Governor has asserted the power to assign different color codes to different parts of the State and govern each by executive decree. In “red zones,” houses of worship are all but closed limited to a maximum of 10 people. In the Orthodox Jewish community that limit might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum. In “orange zones,” it’s not much different. Churches and synagogues are limited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and synagogues, which ordinarily hold hundreds. And the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services. At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential”. And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”

At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. (See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles. Today’s case supplies just the latest example. New York’s Governor has asserted the power to assign different color codes to different parts of the State and govern each by executive decree. In “red zones,” houses of worship are all but closed limited to a maximum of 10 people. In the Orthodox Jewish community that limit might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum. In “orange zones,” it’s not much different. Churches and synagogues are limited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and synagogues, which ordinarily hold hundreds. And the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services. At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential”. And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?” “No apparent reason exits why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids. ”

” “ In far too many places, for far too long, our first freedom has fallen on deaf ears .”

.” “It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”

“Even our dissenting colleagues do not suggest this case is moot or otherwise outside our power to decide.”

“It is time-past time- to make plain that, while the pandemic poses many grave challenges, 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.”

I encourage you to take some time and read the order from the court. I have placed a link to it at the end of this article. Issues of government overreach are becoming more and more common.

It’s past time that the politicians remember who they work for.

It’s past time that the people remember that politicians work for us not the other way around. We have been given the power to create change in our political landscape. We must educate ourselves and push back against these flagrant abuses of power.

https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf