Last week, the Supreme Court ruled five to four in favor of Catholics and Orthodox Jews seeking relief from New York State’s stringent limits on attendance at religious services in certain neighborhoods. As Michael McConnell and Max Raskin explain, the ruling does not by any means assert that religious institutions are exempt from public-health measures, only that there needs to be a less discriminatory attempt to balance safety and First Amendment freedoms:
The restrictions, which are far more draconian than those approved by the court in the earlier cases, are both extraordinarily tight and essentially unexplained. In “red zones,” where infection rates are the highest, worship is limited to ten persons, no matter how large the facility—whether St. Patrick’s Cathedral (seating capacity: 2,500) or a tiny shul in Brooklyn. Because Orthodox Jewish services require a quorum (“minyan”) of ten adult men, this is an effective prohibition on the ability of Orthodox women to attend services. “Orange zones” are only slightly less restrictive; 25 congregants may attend.
In both red and orange zones, “essential” businesses—a broad category that includes everything from big-box retailers to pet shops to lawyers’ offices—may remain open without capacity limitations. One reads the parties’ briefs in vain for a cogent explanation of the difference in treatment.
[T]he justices in the majority seemed to have little sympathy for a general rebellion against all COVID-19 mandates. Justice Brett Kavanaugh, a Trump appointee, specifically noted that he did not “doubt the state’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike.” During a public-health emergency, individual freedoms can be curtailed where necessary to protect against the spread of disease. Most of this authority is at the state and local, not the federal, level. But when public-health measures intrude on civil liberties—not just religious exercise, but other constitutional rights—judges will insist that the measures be nonarbitrary, nondiscriminatory, and no more restrictive than the facts and evidence demand.
Read more on New York Times: https://www.nytimes.com/2020/12/01/opinion/supreme-court-Covid-19-religion.html