During the coronavirus pandemic, elected officials have been confronted with the unquestionably difficult task of safeguarding public health and well-being against an extremely infectious disease. The charge becomes stronger and stronger every day, as circumstances change and as television and print broadcast what amounts to gubernatorial virus report cards, seemingly at the top of every hour: State x added y number of cases and z number of deaths. Officials present themselves as if they perceive that the public expects them to be doing something new constantly to stop the virus — whatever it takes. That pursuit (which I do believe is generally performed with the well-being of people in mind) has resulted in deeply immoral and unlawful policies.
The Supreme Court ruled on Wednesday that New York Gov. Andrew Cuomo cannot enforce his occupancy limits on houses of worship, while the applicant for relief, the Diocese of Brooklyn, awaits a decision on its appeal to the 2nd Circuit. Five justices determined that the limits of 10 people in the governor-deemed “red zones” and 25 people in “orange zones” could not stand because the diocese is likely to succeed in its appeal for a number of reasons. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty,” the court’s opinion reads.
Justice Neil Gorsuch concurred, writing, “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.” Chief Justice John Roberts dissented on something of procedural grounds, but he clearly suggested that he was sympathetic to the diocese’s argument. “The challenged restrictions raise serious concerns under the Constitution,” he wrote in his opinion.
Now, Harvest Rock Church in California is asking the high court for similar relief for it and other California houses of worship. The court should deliver again.
The arguments put forward in the majority opinion and concurrences in the Diocese of Brooklyn case apply to California. Restrictions allowing for no indoor worship cause irreparable harm. Those houses of worship in Gov. Gavin Newson’s most restrictive Tier 1 cannot meet at all for indoor worship, though essential retail and other businesses are treated much more liberally in Tier 1. What good is a constitutional right if it doesn’t protect your ability to go to church over and against your ability to go to Costco? Newsom treats religious institutions and secular institutions disparately, and he has blessed non-religious mass gatherings while insisting on the danger of religious ones, as the Harvest Rock Church application for relief points out.
The charge to care for public health has led, in some elected officials, to a kind of monomania. It’s the coronavirus and nothing else. What is as hallowed as the First Amendment? Yet, the pandemic has demonstrated that it was never too far from being curbed in the name of a just cause, and protecting public health is truly a just cause. So is protecting the free exercise clause.
