Last week, in a five to four decision, the United States Supreme Court granted requests from the Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues to block enforcement of a New York executive order restricting attendance at houses of worship to 10 people in red zones and 25 people in orange zones. Both the diocese and the synagogues claimed that the executive order violated the right to the free exercise of religion guaranteed by the First Amendment, particularly when similar secular businesses in the area were allowed to remain open.
From my reading of the various opinions, it seems that there were at least three points of contention between the majority opinion and the dissent. There was disagreement about whether it was necessary to rule on this matter at a time when no houses of worship were currently classified as red or orange zones. There seems to have also been disagreement as to the threshold necessary to rule in favor of a preliminary injunction against the governor without the benefit of a full hearing to determine whether the governor’s restriction was unconstitutional. However, the issue that seems to have been the subject of most discussion in the media is the third point of contention, i.e., whether the governor’s restrictions clearly were unconstitutional. The majority opinion asserted that many secular businesses like stores were not subject to any restrictions but houses of worship were subject to very severe restrictions. The dissent countered by arguing that there is a fundamental difference between stores and houses of worship. People generally are not gathering, speaking or singing in close proximity in stores for extended periods of time. However, this behavior typically occurs in houses of worship and this accounts for the different rules in stores and in houses of worship. That is why, according to the dissent, the governor legitimately issued different rules for stores and houses of worship without infringing on religious rights. Indeed, the conservative judges were accused of being scientifically illiterate according to certain segments of the media for this very reason.
However, I understand that the majority’s opinion was that the governor overreached when he made no restrictions for stores but he limited attendance in houses of worship to 10 or 25, irrespective of whether congregants were socially distant or masked, whether singing was prohibited, how large the house of worship was, or whether there was adequate ventilation in the house of worship. The governor felt that there was minimal risk in stores and therefore no rules were necessary in those places. It seems that the governor could have promulgated rules that would have created similar minimal risk in houses of worship, such as, for example, limiting capacity to a percentage of the size of the prayer room, such that a large synagogue could have a larger attendance than a small synagogue. The governor could have also minimized risk by mandating that all attendees wear masks. Based on CDC guidelines, synagogues that maintain social distancing of six feet and are adequately ventilated pose minimal risk and if everyone is masked properly, the risk further diminishes. Moreover, the lower court noted that there had not been any COVID outbreak in any of the Diocese’s churches since they reopened and Agudath Israel noted that, similarly, there has been no outbreak of COVID in its congregations. If, indeed, the governor’s restrictions were partially motivated by the concern that members of certain houses of worship were not practicing social distancing, then the governor could have enforced strict penalties upon those houses of worship rather than make an overreaching ruling that seemed to infringe on the free exercise of religion. As such, my understanding of the majority’s position is that the medical evidence in no way supports the wide discrepancy between the way certain secular businesses are treated with no restrictions and the way houses of worship are treated with overly severe restrictions.
I found the Supreme Court’s decision compelling, but I would like to make three points:
- I could be wrong. I discussed this case with a few people and some very intelligent, critical legal thinkers disagreed with my analysis. I tend to be more of a conservative thinker politically and those who disagreed with this analysis tend to think more liberally in general. One person suggested that the majority was scientifically illiterate and should have deferred to the Governor’s medical experts and this person thought that the majority opinion ruled based on ideology. I tend to think just the opposite. I wonder if either of us or both of us are predisposed to side with judges that tend to match with our ideology and whether we would stick to our positions if it wasn’t a free exercise of religion case.
- We must not use this ruling as a mandate to ignore legal restrictions or medical guidelines designed to protect us from spreading COVID. We must shudder when we hear that certain Jews still have mask-less non-socially distant prayer services or weddings and they may use this ruling to support their illegal and dangerous behavior. We must follow the law, but we must do more than that. We also must follow expert medical opinion, as well. That is why many of our shuls mandate both masking and social distancing even though both are not necessarily legally mandated.
- I am happy with the Supreme Court’s decision, but we should not gloat. We must not view ourselves as being at war with the governor. We can believe that the governor overreached in this case, but we also must follow the law and work with and support governmental officials in general and certainly now when we all want to contain the spread of COVID until a time when we have all taken a vaccine. We cannot fall prey to the polarizing political culture that exists in today’s society that whenever we disagree with someone then we must go to war with that individual.
I was particularly happy with the statement that the Orthodox Union released regarding this ruling, that “With its most welcome midnight ruling, the Supreme Court upheld an essential American principle – that the government may not impose rules represented as being ‘neutral’ but that are actually unfair in their treatment of religious exercise… In consideration of this important Supreme Court ruling, and in light of the severe ongoing dangers of the current pandemic, the Orthodox Union reiterates its strong encouragement that all houses of worship continue to vigorously follow applicable health guidelines and adhere to the axiomatic Judaic value and priority of protecting and preserving human life.”
The OU’s statement is a responsible approach in balancing religious and safety guidelines. The statement neither accused the governor of being anti-religious nor questioned anyone’s motivations. I think that the OU’s statement was an illustration of how to disagree without being disagreeable and it should be used as a model by others. If the only voices that disagree with Governor Cuomo are those voices that call him an anti-Semite or announce that they will ignore any legal mandates, then we are in big trouble. We have the ability to model for others how to heal the fractured polarizing political culture as we struggle to balance three religious imperatives: public prayer, good citizenship, and safety.