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.

NEXT: From Blue Monday to Red Thursday.

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  1. We the People informed government, when we created government, of the value judgement to be applied to speech, religion, peaceful gatherings, and the production, mass production and distribution of speech: infinite.

    Religion would thus suffer the least restrictive as any judgements of officials for other things, and maybe not even that.

    This doesn't even get into the observation of granting the dear leader emergency powers, historically usually to the cheers of the people, leading to loss of freedom permanently. Why this doesn't bother many enough to even keep an eye on it, I don't know.

  2. Sottomayor explains pretty convincingly IMO why houses of prayer should be treated differently from hardware stores and whatnot. People don't stand together singing in a closed space for an hour in hardware stores.

    1. Not all religions have people "singing together in a closed space for an hour".

      1. You know I wouldn't mind these cases so much if they were trying to evaluate that question in good faith. Maybe say "these are the things that religious services are most analogous to, so these are the things you have to treat them equally with".

        But that's not what is going on here. Gorsuch is saying that repairing a means of transportation, in an environment that doesn't involve groups together for long periods of time, is the same as a religious service. That's poppycock.

  3. Obviously, the best parties to decide what is "essential" business during a pandemic, and what "non-essential," are five Catholics on the Supreme Court.

    Contagious pandemics require broad-based shutdowns in order to put a stop to uncontrolled spread. These shutdowns need to be tailored, however, so that people can continue to get food, replace clothing, transport themselves, and engage in other necessary life activities in order to get by.

    Yes, this is a distinction that requires the exercise of judgment and discretion. Bike shops were deemed "essential" in NYC because the city is less car-reliant than most other American cities are, subway and bus service were restricted, and people were opting to bike as alternatives. (Car dealerships and mechanics were also deemed "essential.") Liquor stores were deemed "essential" because grocery stores were deemed "essential." Law firms were deemed "essential" because the administration of justice continues during a pandemic, and people need lawyers regardless of the shutdowns. And so on.

    The fact that religious gatherings did not make the cut should not, in itself, by a constitutional problem. Churches are no more "essential," in the functioning of city life, than comedy clubs, bookstores, strip clubs or many other First Amendment-protected businesses. To assert that, if anything is essential, religious gatherings must presumptively be, is simply to say that the First Amendment grants religious institutions a broad exemption from virtually any public health or safety requirement.

    There's a monstrous loophole looming in Gorsuch's complaint, and we should see it before we tear it open.

    1. Gorsuch has the distinction of being neither Jewish nor Roman Catholic. So one of the most vehement pens writing in favor of Jew and Catholics happens to be Protestant.

      Yes. I know. A Protestant making SCOTUS is a surprise, but there's one on the bench.

      1. Before Gorsuch replaced Kennedy, we had no Protestants. The fact that few complained and many didn't even notice struck me as a good thing that we have gotten past caring about the religion of the justices (but of course I realize the same doesn't yet to apply to Muslim or atheist justices).

    2. I generally agree and emphatically so with your last two paragraphs. That being said, I believe Lukumi requires more than blind deference to the political branches on what is essential.

      Lukumi requires that restrictions advance governmental interests and that exemptions do not endanger these interests in a similar or greater degree than going to church. It seems apparent that the governmental interest advanced in this case is public health. Thus, the exemptions given to some secular conduct would then have to not endanger that interest to a similar or greater degree than going to church.

      Some of the exempted secular conduct passes muster because the likelihood of spreading the virus is less. However, some secular conduct is exempted only because the service provided is considered essential. For these exemptions to pass muster, I believe the state must explain why public health is on the whole better served by exempting essential services. Then given that explanation, a court can judge whether or not going to church similarly better serves public health on the whole.

      1. Josh R...Doesn't Lukumi require strict scrutiny? Meaning, there has to be a compelling state interest and the state must use the least restrictive means to achieve it's interest? While there may be a compelling state interest here, this all falls apart on using the least restrictive means. NY state clearly is not using the least restrictive means. you think they are?

        That aside, religious free exercise is essential. It is as least as essential as big box retailers (e.g. Best Buy, Staples), casinos, liquor stores and marijuana dispensaries.

        1. As I also posted in the Open Thread, Lukumi says strict scrutiny applies if the asserted government interests advanced by the restrictions on houses of worship are endangered in a similar or greater degree by the secular exemptions.

        2. Lakumi is an animus analysis. Burden is on the plaintiff to prove bad faith in the creation of the legislation.

          1. Animus is pretty easy to prove here, Sarcastr0. Just read governor Stunod's and Mayor Putz's comments about the Orthodox. They have repeatedly shown animus.

          2. The neutrality part of Lukumi was about animus. The generally applicable part was about underinclusiveness.

  4. Doesn't the very nature of constitutional rights preclude the government from deciding that their exercise isn't "essential"? Or, rather, preclude that decision from mattering?

    The very essence of a right is that it isn't the government that makes the call, it's the person proposing to exercise the right.

    1. That's not the very essence of a right at all, Brett. (All rights feature limits, and the limits are drawn by the government, not the individual.)

      Maybe that's why you get so many legal questions wrong. You don't even know the definitions of basic things.

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