Don't Let the Pandemic Kill Religious Freedom

COVID-19 control measures violate the First Amendment when they arbitrarily favor secular conduct.


About a month after Bill de Blasio personally led a police raid on a Hasidic rabbi's funeral in Brooklyn, which he portrayed as an intolerable threat in the era of COVID-19, New York's mayor visited the same borough to address a tightly packed crowd of protesters who had gathered in response to George Floyd's death. Far from ordering them to disperse in the name of public health, the unmasked mayor enthusiastically expressed solidarity with the demonstrators.

The contrast between de Blasio's anger at Jewish mourners and his solicitude toward political protesters figures prominently in last Friday's decision by a federal judge who deemed New York's pandemic-inspired restrictions on religious gatherings unconstitutional. The ruling, which said COVID-19 control measures violate the First Amendment's guarantee of religious freedom when they draw arbitrary distinctions between religious and secular conduct, is a warning to politicians across the country as they loosen the sweeping restrictions they imposed in the name of flattening the curve.

"Something absolutely unacceptable happened in Williamsburg tonite," de Blasio tweeted the day of the funeral raid. "When I heard, I went there myself to ensure the crowd was dispersed. And what I saw WILL NOT be tolerated so long as we are fighting the Coronavirus."

De Blasio added: "My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period."

But that period turned out to be a comma, followed by an exception for large outdoor gatherings promoting a cause that appealed to the mayor's progressive instincts. As U.S. District Judge Gary Sharpe noted when he issued an injunction against New York's limits on religious services, both de Blasio and Gov. Andrew Cuomo actively encouraged the recent protests against police brutality.

Sharpe agreed with the plaintiffs—two Roman Catholic priests from upstate New York and three Orthodox Jews from Brooklyn—that de Blasio and Cuomo had created a de facto distinction between religious and political gatherings. He also noted explicit restrictions on religious activities that did not apply to secular activities posing similar risks of virus transmission.

The rules limited attendance at indoor church and synagogue services to 25 percent of capacity while allowing various businesses, including stores, offices, salons, and restaurants, to operate at 50 percent of capacity and imposing no limit on special educational services. The state "specifically authorized outdoor, in-person graduation ceremonies of no more than 150 people" while imposing a 25-person limit on outdoor religious gatherings, including masses, funerals, and weddings.

The Supreme Court has said neutral, generally applicable laws that happen to restrict religious activities are consistent with the First Amendment. But it also has said laws that impose special burdens on religious activities are subject to strict scrutiny, meaning they are unconstitutional unless they are narrowly tailored to achieve a compelling government interest.

Sharpe concluded that New York's rules were not generally applicable and could not pass the strict-scrutiny test. While that analysis seems straightforward, federal appeals courts have split on the question of whether state restrictions on religious services are neutral and generally applicable.

Last month, when the Supreme Court declined to issue an injunction against California's restrictions, Chief Justice John Roberts dismissed the idea that the state was discriminating against houses of worship by applying special rules to them—a position that mystified the four dissenters. When churches, synagogues, mosques, and temples are prepared to follow the same social distancing and hygiene rules that apply to other settings where people gather for extended periods of time, they thought, there is no rational basis for treating them differently.

Courts are understandably reluctant to second-guess state and local decisions about how best to deal with a contagious and potentially deadly disease. But this is one of the areas where the Constitution requires a less deferential approach.

© Copyright 2020 by Creators Syndicate Inc.

NEXT: Did COVID-19 Lockdowns Reach Back in Time to Affect Behavior Before They Were Imposed?

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  1. Bill de Blasio and John Roberts are goat-licking, horse-cock-craving losers. They will never invited to my people's scat parties.

    1. This is Yellow Tony, isn't it.

      1. He contains multitudes.

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  2. Sharpe agreed with the plaintiffs—two Roman Catholic priests from upstate New York and three Orthodox Jews from Brooklyn—that de Blasio and Cuomo had created a de facto distinction between religious and political gatherings.

    Two priests, three rabbis, and an asshole walk into a courtroom...

    1. Two assholes, surely! Which one were you leaving out, the mayor or the governor?

      1. Yeah, I missed Fredo's brother.

  3. About a month after Bill de Blasio personally led a police raid on a Hasidic rabbi's funeral in Brooklyn

    Reminds me of Sam Asbell, who used to go on drug raids with the Camden P.D. Didn't work out too well.

    Funny thing - this guy's still practicing law!!!

    1. Maybe one day he will have practiced enough and can try the real thing.

  4. If de Blasio were Republican his antisemitism might be much more recognizable, but I guess in Hymietown this sort of thing just passes unnoticed.

    1. its long time panadamic so be ready again

    2. By mid-2022 the mass murder of Jews will be a foundation of "anti-fascist" inclusive and socially responsible policy.

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  6. "when they draw arbitrary distinctions between religious and secular conduct"

    Brothers, have yee no faith? I believe the BLM protest was a religious event.

    1. That's why they defaced Christian churches and icons. It offended the followers of the One True God, BLM.

  7. Don't Let the Pandemic Kill Religious Freedom

  8. when they draw arbitrary distinctions between religious and secular conduct

    I'm too lazy to look it up, but the other day some "leader" "allowed" religious gatherings to be mask-free, unlike secular gatherings. So this crap works both ways.

    1. Did he allow the secular gatherings?

  9. The only Pandemic is the worldwide spread of the idea that humans are significantly threatened by a virus.

    1. Coronavirus is an airborne, man-made hybrid of Ebola and Rabies. It is known.

  10. Shorter Reason: When rights are stomped on, they need to be stomped on equally.

    1. "Baby steps." 8-(

  11. Somehow the traditional government police power to quarantine the sick transformed into the power to quarantine everyone. There is no way to reconcile that broad of a power with any freedom of assembly or movement.

    The problem is that it is impossible to "lock down" a society. People still have to eat. Someone has to ensure the lights still come on and the garbage is still picked up and everything else required to have a civilization. So no "lock down" is complete or real in any meaningful way. What you have instead is some people locked down and others not because the government deems them "essential". What is "essential"? Essential is a totally subjective term. What is essential to you is not necessarily essential to someone else. So the lock downs were always and always will be an exercise in entirely arbitrary government tyranny. What is "essential" is whatever the local petty tyrant decides is "essential". And in fairness to the tyrant, there is no other way to do it. Even if the local officials are well meaning their decisions and distinctions are going to be arbitrary and based on their prejudices and whims because the entire nature of the operation is arbitrary.

    I will to be the first to admit that I was completely wrong about this in the beginning and frankly embarrassingly so. Somehow, I convinced myself that these measures would just last for a couple of weeks and would be over because they were so draconian that the public wouldn't tolerate it and they would become unenforceable regardless of what the government thought.

    Shame on me. I totally underestimated the cravenness of government officials and the willingness of the public to be brainwashed and willing to tolerate unbelievable restrictions on their civil rights. The lesson to be learned from all this is that no government can ever be trusted with the power of locking an entire society down. The power by it's very nature is arbitrary and tyrannical and guaranteed to get out of hand no matter how much the powers that be promise otherwise. This should never be allowed to happen again. If government can't control a virus by quarantining the sick, then the virus can't be controlled and we will just have to figure out a way to live with the consequences.

    1. "Somehow the traditional government police power to quarantine the sick transformed into the power to quarantine everyone."

      And by allowing the state to do so, we turned over *our* economy to state planning.
      No 'planned economy' ever worked.

    2. I never thought it would be this way, either. I can scarcely believe it.

  12. But this is one of the areas where the Constitution requires a less deferential approach.

    1. Yes it does.

  13. Comrade De Blasio was right to suppress religious freedom in the People's Republic of New York.
    It's high time The State cracked down on people who have a duel loyalty.
    These God worshiping vermin need to be taught the lesson there is only one god, and that's The State.
    Comrade De Blasio would be prudent to follow the kind, tolerant and merciful way Stalin treated those who worship God instead of The State by beating, starving, torturing and killing them as a gentle reminder who they should bow down to.
    This will set the needed example all of his people who are under his thumb.
    Religious liberty is an antiquated and counter-revolutionary practice that has to be stopped before it infects the rest of the collective like a cancer.
    Hopefully, Comrade De Blasion will be show his tender side next time by burning down all churches, mosques, temples and synagogues and shoot their adherents.
    After all, this is still the Union of Soviet Socialist Slave States of America where true freedom comes from the wise diktats of our socialist oppressors.

  14. It is ironic that churches, whose rights are specifically protected in the Constitution, are held to a higher standard than rioters. These ‘democrats’ need to be drummed from office and sued personally for depriving their constituents of their constitutional rights.

  15. This is very good, but I'm still waiting to hear Shikha's (or Reason's) opinion on India's response to Chinese sponsored murder.

    "India hurts only itself by banning Chinese products, we must now let Indians in this country"

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  18. Large crowded church gatherings and large protests are equally dangerous with regard to COVID-19. However, the protesters were often wearing masks and gloves and taking the health threat seriously. The most dangerous act for spreading the disease is singing and there are few religious groups that don't include singing and chanting as part of a ritual. Actually, there are "liberals" that are religious. You know that Jesus was a brown man persecuted by the state asking people to love one another and give 10% or their income to the poor. Sounds down right Communist. Many of the right wing Christians see church as a country club to hang out with other well off white people and show disdain for the poor. Not sure how such people identify as Christian.

  19. When this COVID will go...? I don't know.. Still, I'll tell you to stay home... Read my article on Best Darn Ham Sandwiches that you can make on your sweet home.

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