Religion and the Law

Police Disperse Large Outdoor Orthodox Jewish Prayer Group in Brooklyn

... for violating New York City ban on gatherings of 50 people or more.

|The Volokh Conspiracy |

The New York Post (Yaron Steinbuch) reports.

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  1. So here’s a question for you all.

    If NYPD disperse some gatherings over 50 (IE the orthodox Jews), but don’t disperse other gatherings over 50 (Say, a politically well connected cocktail party)

    Does this represent religious discrimination of some sort and a violation of the 1st amendment (Either the religious part or the freedom of assembly)?

    1. Definitely — selective prosecution that favors certain ideological groups over others, or certain religions over others, or certain social events over comparable religious events, may well violate the Free Speech Clause or Free Exercise Clause.

      Now such selective prosecution might not be easy to prove, especially since there may be neutral reasons for the difference in treatment: For instance, the police may have been alerted about one event but not another, or may have been short-staffed when one event was happening. And when one gets beyond social or ideological events, the differences might be even more clearly justifiable: That the police let 50 people gather to fight a fire doesn’t mean that they have to let 50 people gather to hold a political rally.

      But in principle, the police do need to apply the rules evenhandedly regardless of the group’s religion or ideology. Indeed, that’s one reason why the police might take a no-exceptions policy, rather than cutting some groups slack.

      1. That’s actually my non-political take of the Warren Court — they realized that police were engaged in selective prosecutions/arrests and hence introduced due process and probable cause requirements so as to end that.

        Circa 1950, the cops weren’t arresting people whom they thought were innocent — why expend the effort? And I like to point out that Miranda was subsequently convicted of that rape — after his confession was thrown out, the cops actually did their job and went out and found witnesses that had seen him committing the rape and they used that at trial to convict him.

        This is the reason why I have problem deferring to police judgement — as is being done with a lot of this “emergency” stuff — no, due process mandates that we don’t have curbside justice….

    2. In the circumstance you describe, yes.

      My question. Would it still be a ‘gathering’ if everyone were spaced 6 or 8 feet apart? Ostensibly, the public health concern is not there if people are far enough apart. I don’t advocate doing that, of course, but just curious.

      1. And then would the police be generating a 50+ crowd if they took them all to some holding cell?

    3. Leashing this group, while enabling another group to engage in nonessential gathering, would be gravely wrong.

      Roughly as wrong as the decision by the leaders of this group — “leaders” who turned out to be belligerent, anti-social, immature chuckleheads — to assemble in this manner under these circumstances.

    4. I’m not aware of any politically well-connected cocktail parties. Not that I know of every cocktail party in New York, of course, but most co-op buildings (which is where the politically well-connected mostly live) have implemented severe restrictions of their own. If you have a cocktail party in our Central Park West building, your guests will have to make 25 elevator trips (no more than two people in the elevator at once) just to get to the party.

  2. This is not nearly as bad as some other places.

  3. Absolute primitive animals.

  4. The matter is more complex than the article indicates.

    The prayer gathering was outdoors, which is certainly not the norm. and it appears that people kept a distance from one another. (Or at least they could.) So they were no more, and probably less exposed, than people going to a supermarket to shop. I went to a supermarket today, and while everyone kept their distance, there certainly were more than a total of 50 people there. The same is probably true in NYC public parks.

    So that begs the question of what is “essential” and what is not. Religious people may well feel that some sort of religious gathering is essential, assuming that they are willing to do so outdoors (as they did here) and keep a distance (don’t know, but they could), then they have a decent argument that their religious freedom should allow it.

    Or, IOW, assuming they are willing to do so outdoors and keep a minimum distance, is there some real basis to say that is a significant risk that overrides their religious freedom?

    That said, if the limit is 50, they could gather in groups of, say, 40. Orthodox Jewish law only requires a quorum of ten men. (Perhaps that area of the city is too crowded for that. Which is a whole other issue — as I was telling my wife today, this new regime is a lot easier for those of us who live in the suburbs than for city dwellers.)

    1. The order is unconstitutional and should be ignored. Let people gather.

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