The Volokh Conspiracy

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Roman Catholic Diocese Part V: What Rights Are Essential?

The Court doesn't crack down on the arbitrary distinction between "essential" and "non-essential" businesses--yet.


This post is the fifth installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay "superprecedent." Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause. Part IV focused on mootness.

Since the outset of the pandemic, Governors have separated between "essential" and "non-essential" services. Indeed, I titled my article, What rights are essential? These distinctions can be truly arbitrary. I think many of these orders flunk even the most deferential rational basis review. For example, in Michigan, hardware stores couldn't sell paint. These distinctions can only be upheld if the Court says "not interested." In Diocese, the Court did not crack down on these arbitrary distinctions–yet. But the per curiam opinion seems very, very skeptical of these gradations.

The Court explained:

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as "essential" may admit as many people as they wish. And the list of "essential" businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. . . . The disparate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

Justice Gorsuch's brawling concurrence was far more incensed at the essential/non-essential distinction.

At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers "essential." And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pickup another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?

Gorsuch is right. Essential is a synonym for what the Governor finds important. Liberal governors deemed marijuana dispensaries essential. And conservative governors deemed houses of worship essential. A preference for secular convenience, Gorsuch writes, is barred by the First Amendment:

As almost everyone on the Court today recognizes, squaring the Governor's edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of "essential" businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn't as "essential" as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all "essential" while traditional religious exercises are not. That is exactly the kind of discrimination the FirstAmendment forbids.

Nor is the problem an isolated one. In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples In far too many places, for far too long, our first freedom has fallen on deaf ears.

Gorsuch concludes.

It is time—past time—to make plain that, while the pandemic poses many grave challenges, 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.

Soon enough, the Court will have to confront these lines between essential and non-essential services. This distinction cannot form the basis for prolonged deprivation of rights.