Cuomo's COVID-19 Rules Discriminate Against Religion

The case gives SCOTUS another chance to enforce constitutional limits on disease control measures.


"This is a fear-driven response," New York Gov. Andrew Cuomo said during an October 6 phone conversation about his pandemic-inspired restrictions on religious services. "This is not a policy being written by a scalpel. This is a policy being cut by a hatchet."

The Roman Catholic Diocese of Brooklyn, which is asking the U.S. Supreme Court for an emergency injunction against Cuomo's order, argues that a bit more care is required when the government interferes with the free exercise of religion. The Court's decision will be an important indication of whether the justices are prepared to enforce constitutional limits on what politicians can do in the name of fighting COVID-19.

Under the hatchet-cut policy that Cuomo imposed last month, "houses of worship" in Brooklyn may admit no more than 10 people in "red" zones and no more than 25 in "orange" zones. The injunction application says those limits, which apply regardless of a building's size, "effectively shutter all of the Diocese's churches in those zones."

The rules for secular activities are much looser. In red zones, "essential" businesses—including supermarkets, convenience stores, hardware stores, pet stores, banks, and various offices—operate without capacity limits. In orange zones, that is true for an even wider range of businesses, including department stores.

You might surmise that Cuomo is picking on churches because they have proved to be especially dangerous sources of infection. Yet U.S. District Judge Nicholas Garaufis, even while declining to enjoin enforcement of the restrictions, acknowledged that "there has not been any COVID-19 outbreak in any of the Diocese's churches since they reopened."

In fact, Garaufis said, "the Diocese has been an exemplar of community leadership" in responding to COVID-19. "At each step," he noted, the diocese "has been ahead of the curve, enforcing stricter safety protocols than the State required."

When the diocese began to reopen its churches, Garaufis added, it enforced "rigorous safety protocols." Those included face masks, physical distancing, shorter services, sanitization between masses, a revised Holy Communion ritual, and a 25 percent capacity cap, which it continued following even when the legal limit was raised.

The diocese is perfectly willing to accept "neutral public-health guidelines" aimed at preventing virus transmission. It is not willing to accept a policy that explicitly imposes special burdens on religious activities while granting more leeway to myriad secular activities that pose similar or greater risks.

The Supreme Court has said the First Amendment's Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. But it also has said laws are presumptively unconstitutional when they discriminate against religion.

Cuomo's rules clearly fall into the latter category. By denying that reality, Garaufis and the U.S. Court of Appeals for the 2nd Circuit, which upheld his decision, are in effect saying an emergency like the COVID-19 epidemic suspends the constitutional rights Americans otherwise enjoy, giving politicians like Cuomo unlimited discretion to respond as they see fit.

In a Federalist Society speech he delivered on the same day the diocese filed its application with the Supreme Court, Justice Samuel Alito warned that "laws giving an official so much discretion" can be abused. When that happens, he said, "the Supreme Court and other courts cannot close their eyes."

The Court already has closed its eyes twice, turning away challenges to restrictions on religious services in California and Nevada—decisions from which Alito, joined by three other justices, dissented. The Nevada case was especially striking, since the state's rules for houses of worship were stricter than the rules for other venues—including casinos, bars, restaurants, gyms, arcades, and bowling alleys—where the risk of virus transmission was arguably higher.

The contrast between the treatment of religious and secular establishments in New York is even starker, and the replacement of Ruth Bader Ginsburg with Amy Coney Barrett could make a crucial difference this time around. If the Court again declines to intervene, it will send a dangerous signal at a dangerous time for the Constitution.

© Copyright 2020 by Creators Syndicate Inc.

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  1. Blue state restrictions violate the constitution.

    1. Maybe you should move to a red state, then

      1. Sounds like you recognize the political independence of states. Good for you.

      2. Lol

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    4. Wasn’t it a red state that went and handed out tickets to everyone sitting in their car at an outdoor church service?

      Yes, yes it was.

      1. What’s cherry-picking paying these days?

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    5. Really?!? No matter what your opinion, or for that matter, anybody else’s opinions are, these lockdowns and curfews, and the insistence on wearing masks and social distancing are in place for a damned good reason: The Covid-19 virus is a hell of a lot deadlier and more contagious than the common cold, flu(s), or strep throat and other bugs that hit every year. Don’t kid yourself. Thanks to Donald Trump’s criminally irresponsible mishandling of the pandemic and refusal to do anything about it when it was still easy to contain and control, we’re in this mess, with the pandemic running so rampant and so out of control right now.

    6. Show how and why.

  2. Here in Ohio the virus is apparently more dangerous between 10 pm and 5 am when most people are asleep. It’s a sneaky bastard.

    1. This virus works in mysterious ways. Here in Penna. it isn’t that dangerous if you work in Delaware and have to travel back and forth every day for work. But if you slip over to Delaware just once for 15 minutes to buy a bottle of wine, you are contaminated and must quarantine upon your return for 14 days. Go figure.

      1. I live in Idaho and work in Washington. I’m supposed to directly leave work and do all other business in Idaho. Neither state wants the other’s cooties.

        1. It hides in the cork. Step down to a screw top, you might be OK

      2. That virus is one smart bugger, discovering that it’s easier to contaminate people in states without sales tax.

        1. Go figger.

    2. You’re lucky! In CA it’s so dangerous that many ‘businesses’ are closed 24/7!
      Meaning they won’t be businesses for long.

      1. Don’t worry, Gavin Newsome will call Andrew Cuomo, and they can decide what the optimal shitbag response to rampant unemployment can be, to solve the problem they created.

        1. Almost all government “solutions” exist to solve problems they created in the first place. Ad infinitum.

        2. They’ve already decided: handouts from the federal government.

      2. Could just kill their clientele.

  3. The resident bigot hardest hit. His white knight next in line.

    Oh wait, these are Catholic’s, not Jews. Never mind.

    1. Or maybe Catholics are just as bad? Maybe Dee can ask KillallRightWingers next time she’s wanting to get to know him better, instead of calling him out like she does with people that use mean words, but aren’t left wing?

      And the reason why Dee is a hypocrite on such matters is because she’s a lefty.

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  6. The entire distinction between essential vs non-essential needs to be challenged. Non-essential businesses would have been closed by a lack of customers.

    1. All businesses are essential to someone. The official designation of essential businesses is arbitrary and capricious and should be shot down quickly and unanimously by any court (as if that would actually happen).

      1. It was soundly upheld in KY in a unanimous Supreme Court ruling, and we’re a state where the constitution explicitly prohibits arbitrary government.

        We’re fucked, and I don’t see a path back to even the shitty levels of government we had in January, much less anything that even remotely approaches a libertarian society.

    2. It’s pronounced com mun ism when government centrally runs the economy.

      1. No, it’s not.

        You need a bit of instruction on that, but I am tired of educating right wingers on the true meaning of Communism and Socialism.

  7. If only more people were atheist and agnostic about government. I grew up hearing how religion is the cause of most wars, but if you study history you realize it’s actually government—though often using religion as a fig leaf to cover the actual motives.

    Maybe it’s time to expose Cuomo and other so-called “leaders” for the charlatans they are, seeking to delude and sedate the masses with their opium of “free stuff” that is actually extremely costly, wasteful, and inefficient.

    1. What about people who worship at the altar of woke socialism? Are they atheists?

      1. Careful there, if the beliefs are religious they get special privileges.

        1. Socialists get some special treatment with a fist, you fucking asshole.

          1. A large, black chin dildo might also be a good solution.

      2. That’d make the streets of protest their church. We must limit all “peaceful” protests to 10 people in red zones.

      3. When such a thing exists I’ll worry about it.

    2. Most kids get indoctrinated for 12-16 years. The dogma comes at them fast and hard, especially in high school and college. It’s more intense than pretty much any other religious indoctrination. The Catholic Church only wishes it could be as influential in a child’s life as public schools are.

    3. Actually, it’s people who start wars. People in government, but still people. Last I checked, religions don’t have guns and tanks and things. Except the Sikhs who carry daggers.

      When people in government engage in mass violence, it’s called “war”. When people outside of government engage in mass violence, it’s called “riot”.

  8. You know the Law – Rule #1: I am the Lord thy God, thou shalt not have any gods before Me. Cuomo takes that shit seriously, he really gets pissed off if he sees you going around talking about other gods.

  9. If the court refuses to hear this case how many protest do we expect for a clear infringement of constitutional rights and limits on government.

    1. Refer to the second amendment.

      1. Yes, refer to the 2nd amendment, then enlist.

  10. South Bay and Smith need to be revisited by SCOTUS in light of state executive and legislative actions that directly threaten our free exercise rights.

    It is only a matter a time before these progressive fuckheads start criminalizing religious beliefs. What this shithead Cuomo is doing is sounding the Leper’s Bell for religious free exercise rights.

  11. But it’s all right, since he’s not discriminating against Muslims.

    1. Well we checked with the Muslims. They declined to comment. Privately it is reported that the chief imam of New York just shook his head and said “stay out of it. These people are crazy”.

  12. “The Court already has closed its eyes twice, turning away challenges to restrictions on religious services in California and Nevada—decisions from which Alito, joined by three other justices, dissented.”

    How can 4 justices dissent from a denial of cert? It only takes 4 to grant cert…

    1. South Bay wasn’t a denial of cert, it was a decision to reject a request for an injunction.

    2. Someone should slap capacity restrictions on Planned Parenthood. and the courts will rush in to put a stop to this madness.

      Yay Superprecedents!

      1. Probably.

        But only for abortion clinics.

      2. They probably already apply.

  13. ”You might surmise that Cuomo is picking on churches because they have proved to be especially dangerous sources of infection.”

    I’d suggest that these would-be despots are cowards, and see church goers as easy victims that are not likely to “peacefully protest” their stupid decrees.

  14. Those poor churchgoers just don’t know the danger they are putting themselves in by going to service. They must be protected from themselves by the Benevolent Supreme Leader Cuomo.

  15. These guy is such an obscene idiot.

    Not content enough with messing up with nursing homes and causing deaths he tries to make up for it by over doing the ‘I’m doing all I can to protect you’ shtick.

    He’ll end up making matters even worse.

  16. The diocese is perfectly willing to accept “neutral public-health guidelines” aimed at preventing virus transmission.

    Religion is the biggest con that ever stalked this world but in this instance, if Reason is presenting all the facts accurately and completely, I agree with the diocese.

    1. The left and democrats are the biggest con, Cuomo is a fucking mafia don, and you are a shitstained asshole.

      1. Perhaps but even the mafia dons had some respect in matters of religion. They were mostly Italian or Irish Catholic along with some Jews actually.

    2. Religion is the biggest con because the message of giving meaning to peoples’ lives is powerful. It also appeals to people with a self-righteous, superiority complex, and gives them a common enemy that they can seek to destroy. E.g. crusades, Salem witch trials; radical Muslim terrorist groups; etc.

      Kind of makes it obvious, then, why the left has adopted a similar religious attitude. Demonize people who don’t agree with you, which gives you the moral high ground to destroy them–right now, their livelihoods; soon, literally. The modern left is no different than the McCarthyites.

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  18. Wow. Pissing off Catholics and Jews…in New York.

    This does not look good for him.

    1. Doesn’t matter. They don’t vote in enough numbers to stop him.

      All he needs are the godless left and they instinctively vote Democrat, like lemmings.

  19. “The Court already has closed its eyes twice”

    No, the Court has decided, just as the Court decided, in similar 5-4 decisions, that the 2nd amendment enshrines the “right to self defense” in the Constitution, said right including the right to a hand gun sans the sort of trigger locks prescribed by the DC government. It’s just that you didn’t like the Court’s decisions this time around. To each his own. But only the Court’s opinions have legal force.

    1. You still whining about A2? Grow up and fuck off.

  20. asshole’s getting a pay raise too.

  21. >>may admit no more than 10 people in “red” zones and no more than 25 in “orange” zones.

    the white zone is for immediate loading and unloading of passengers only …

  22. Wasn’t it a red state that went and handed out tickets to everyone sitting in their car at an outdoor church service?

  23. If there is anything we should be concerned about during a pandemic, it’s slack-jawed superstition.

    Carry on, clingers. But only so far as your betters allow.

    1. >>it’s slack-jawed superstition

      can they congregate to talk about you instead?

    2. Are all the mask fetishists slack jawed? It’s obviously hard to tell…

  24. Pissing off Catholics and Jews…in New York. Potholedummy

  25. Simpler and more honest headline:

    Cuomo is still an anti-semitic bigot.

  26. no more than 10 people in “red” zones and no more than 25 in “orange” zones … regardless of a building’s size

    Now, *that* is “Science”!

  27. Oh, gee.

    Well, if Hackjob Sullum feels so strongly, maybe he should stop actively gaslighting legal attempts to audit an obviously rigged vote from the Communists who make no secret of their intent to do this to the whole country the moment their child-molesting dictator seizes office.

  28. Cuomo seems unhinged.

    1. A lot of doublespeak in that study’s writing obfuscated the results.

  29. My sister lives in upstate NY and she and her husband’s family are getting together for TG like they always do…and will easily exceed 10 people with all the kids. Of course, if anyone is sick or been in contact with someone who was, they will stay away. But they are ignoring this asshole of a governor.

    As they should.

    Fuck you, Andrew Cuomo.

  30. This article is scientific garbage. At no point does it mention that religious gatherings overwhelmingly include extensive singing and chanting and praying, known to spread Covid at at far higher rate than shopping and other activities.

    1. Idiot, read the article. There has been ZERO infections within churches adhering to its own guidelines.

  31. Here in socialist/nomenclatura ruled CA, there was outrage when it was discovered that gyms inside government facilities were open, even as privately owned gyms were ordered closed. not surprising when you consider that our Governor got caught attending a birthday party for a friend at an upscale resaurant, while telling us all to avoid family gatherings.

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  33. Please show me where in the Constitution there is ANY public health or other exceptions to our First Amendment rights. There are none. Read the amendment –

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

  34. This politician gangster needs to be held criminally responsible for the 6,000 plus New York City nursing home covid deaths.

    1. 12,000 deaths.

      6000 are those who died IN nursing homes.

      There’s at least another 6000 who were transferred to hospitals FOR COVID treatment and died there.

      NY doesn’t count them as nursing home deaths, but they should, because that’s where they got sick.

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