Is organized religion cavalierly opposed to defeating Covid?

The above title surely sounds counter intuitive, even ridiculous.

Of course religion — every religion — wants to see an end to a worldwide illness, more than anything. Religions want to cure the sick. Could it possibly be otherwise? Religion is about life, saving life — if alone to serve God or whatever other figure worshiped.

Can it possibly be that the duty of worship — indeed, any protocol of worship that an organized religion endorses, or even requires — eclipses the need (or desire) to protect and procure the safety of its worshipers, even if the protection is by means of government-enforced measures?

A divided Supreme Court of the United States, just last week as the daily death rate from Covid has skyrocketed, decided that measures “divined” by New York’s Governor Andrew Cuomo violated the First Amendment’s freedom of religion clause. It did so resting its decision on the ostensibly silly regimen that houses of worship in certain geographical zones that restricted the numbers of worshippers who could attend, did not also restrict those who visited essential businesses or, as Justice Gorsuch sharply noted in his concurrence, liquor stores and bicycle rental shops.

Indeed, Cuomo, however well intended he might have been, was wrong because the “appearance” of a discriminatory motive was an eyesore of sorts (even though discrimination was surely not his intent or goal) and perhaps not completely thought through. Did it make sense? Well, isn’t someone more likely to spread or encounter COVID while praying out loud and singing in an assigned, indoor spot for an hour or more than walking in and out of a bike shop or liquor store? Think about the limits imposed on gyms – is it enough? Is it different than houses of worship?

Whether the Supreme Court was “right” or “wrong” in how it decided the constitutional issue at stake in a 5-4 decision — not the question here — why did the Brooklyn Roman Catholic Diocese and Agudath Israel bring these cases in the first place? Why couldn’t those litigants recognize — whether or not liquor stores or bike repair shops were (perhaps oddly) free under the Governor’s guidelines, to permit greater attendance than synagogues and churches in the same hot spot communities — that there was a valid reason for these houses of worship to simply comply. Couldn’t they see that the Governor was only trying to protect against the “spread,” even if he did so poorly, re-actively and perhaps even with inconsistency? Why, in fact, weren’t these religious litigants even more demanding than the Governor in trying to protect their own? Don’t they read the headlines, see the jump in numbers and recognize “super spreader” events?

Justice Gorsuch’s concurring opinion was angry – no other word will do. But a judge, unlike a governmental executive such as a governor, has no obligation to protect the public health of its citizens. That’s not a judge’s job.  He, along with those with whom he sided, wrote purely from the perspective of a judge who is required simply to defend his view of a constitutional imperative.

And the real issue is this: courts don’t decide cases unless they are brought to them by litigants,. Here, the houses of worship claimed that the constitutional rights of their members were offended, essentially based upon a claim of “discrimination.”

If the religious entities that initiated these lawsuits thought there was discriminatory enforcement at play here, why weren’t they instead petitioning the Governor to be more stringent in addressing the secular entities that were allowed more patrons? Why weren’t they asking for more severe measures in their communities to ensure defeat of the spread?  Wouldn’t that have been the more proper role of “religion”?

On November 8, in New York alone, there were 3,430 new cases of COVID reported; 27 deaths; 1,396 hospitalizations; and an Orthodox Jewish wedding in Brooklyn attended by 7,000 people with people (un-masked) all but sitting on each other’s laps. I don’t blame all segments of Judaism for that monstrously potential super spreader event. But do those who brought the case to the Supreme Court call out that conduct? Do they call out those in Hasidic communities, for example, who cavalierly walk the streets of their communities flagrantly unmasked?

Yes, it’s true that four justices of the Court would have ruled in favor of Governor Cuomo that the case was moot — because the Governor had already modified the rules by the time the case got to the Supreme Court. But that’s hardly the point. The point is really whether religion puts its best foot forward here when the Governor actually tries, inartistically as he may have done it, to protect religious communities — basically from themselves.

We do live in a nation of religious rights. And it may very well be that in this instance the Governor was placing the government’s nose inside the tent of religious freedom. But, in hard times such as these, shouldn’t we consider the Governor’s motives, especially when he is clearly trying to do the right thing? More to the point perhaps, what are the motives of those who challenged his actions – the medical evidence cannot be disputed that their win, even in the short term,  could well lead to higher illness and death rates for their own communities. And how does that make any sense?

About the Author
Joel Cohen is a white-collar criminal defense lawyer at Stroock in New York and previously a prosecutor. He speaks and writes on law, ethics and policy (NY Law Journal, The Hill and Law & Crime). He teaches a course on "How Judges Decide" at Fordham Law School and Cardozo Law School. He has published “Truth Be Veiled,” “Blindfolds Off: Judges on How They Decide” and his latest book, "I Swear: The Meaning of an Oath," as well as works of Biblical fiction including “Moses: A Memoir.” Dale J. Degenshein assists in preparing the articles on this blog.The opinions expressed in this article are not necessarily those of the Stroock firm or its lawyers.
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