SCOTUS decision on COVID-19 restrictions in New York

Good summary here:

As concerned as I am about creeping anti-secularism in the USA, I am not as concerned by this case as many other secularists seem to be. First of all, it is not a final decision but merely a stay preventing enforcement of the law while appeals continue to be heard at the lower level.

Also, the reasoning of the decision seems to be reasonably sound: If places of worship are being subject to more stringent restrictions than comparable secular businesses, then the Establishment Clause may well be violated.

This is not to say that this court will not make future decisions that inappropriately favor religious freedom over other civil rights (e.g. regarding laws preventing discrimination on the basis of sexual orientation). But I don’t think this particular case is the one that confirms that fear. Not yet.

Anyone else have any thoughts? Particularly @Puck_Mendelssohn or other lawyers we might have among us?


Yeah, I’d agree. In general we have been moving in a disturbing direction re: church/state issues, but this does not, at least at present, look like an extension of any existing doctrine but rather looks like a conventional neutrality issue: imposition of restrictions should be religion-neutral. Now, that’s a bit tough here because it’s not clear what the appropriate comparator is. Grocery stores aren’t up and running because of low risk of spread – they’re up and running because they are essential. So do you compare churches to analogous “essential” services, or to things more like entertainment services? I’d think the appropriate comparator is something like meetings of philosophical societies, but there aren’t a lot of those on the ground these days.

And, as you point out, it is a preliminary injunction. Thus, while the court’s opinion suggests where the court might go, it isn’t the last word on the subject.

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This ruling is moot. These churches and synagogues are no longer in the red zones. These churches and synagogues are now free to spread the virus to as many of their adherents that are stupid enough to attend indoor services during a global pandemic.

I would also suggest that, where churches offer a differing level of risk to businesses, it is not necessarily a violation of religious neutrality to treat them differently.

Churches tend not to be designed in such a way that social distancing is particularly practical, and tend to involve a higher degree of such high-risk activities as social interaction and singing.


And, given this in the minority opinion:

But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID-19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time ... Unlike religious services, which 'have every one of th(ose) risk factors,' ... bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. ('Epidemiologists and physicians generally agree that religious services are among the riskiest activities'). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.

… it would appear that the court’s (conservative Christian) majority simply doesn’t care about science or about the cost in lives of the religious plaintiffs’ selfishness.

I agree. The difficulty, in a situation like this, is in figuring out what churches ought to be compared to. I’d think the best comparison is to mass entertainment, such as sporting events and movie theaters. But I’m sure that somebody would find that outrageous, insisting that while those things are meant to make people feel good, the whole point of his church is to make people bloody miserable.


“Tend not to be” being the operative phrase there.

Though I do not know if this reasoning was employed in the ruling, I could see an argument being made that even if a religious institution employed procedures that minimized the risk of spread (e.g. congregants kept isolated from each other in sealed plexiglass boxes 10 ft apart) they would not be allowed to open under the law by virtue of being a religious institution, whereas a secular business employing the same procedures could be. By my understanding, anyway.

The thing is the Constitution already spells out that religion is to be treated differently and a higher threshold needs to be reached in order to abrogate one’s ability to practice his faith. Movie goers and sports fans are not so protected.

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I’ve seen little indication that the religious groups suing/protesting against restrictions are doing anything substantive to mitigate the risks – let alone “sealed plexiglass boxes”.

Well, yes and no. The requirement is neutrality, at least formally speaking. That ordinarily means that a regulation adopted for some legitimate secular purpose which has among its affects a burden on religion (e.g., a fire code restriction on the number of people who can be in any given building, including a church) is valid, but here it looks like churches were dealt with as a specific category, and that’s the beginning of the problem. There seems to have been some difference of opinion between the Justices as to whether the regs treated churches less favorably than comparable activities, and that’s what it would turn on: comparison.


The point is, if they had done so, would the law still prohibit them from holding services because of a blanket ban on religious congregations? If so, then the law is arguably unconstitutional.


Agree here. I have relatives whose churches have taken very reasonable measures for distancing and infection control, with pre-registration required for attendance.

Lack of consistency has been rife across the entire political spectrum, with conflicting versions of “of course that is exempt”, or “of course that is a false equivalence”, depending of what matters to the particular authority. Yes to schools and no to flying. No to schools and yes to flying. Yes to worship and no to protests. No to worship and yes to protests. Yes to border controls and no to masks. No to border controls and yes to masks. Yes to Costco and no to Fred’s Fishing Tackle. We are perfectly consistent, if you forget all the previous stuff we said. Trust the science, but the WHO and the CDC have flipped around like fish in a boat from the get go when it matter most.

If we deliberately set out to create cynicism concerning public direction and ineffective control of Covid, I do not know how a better job could have been done of it. So I have some common ground with the SCOTUS saying, look, you are all over the map.

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It is certainly the case that one of the things which the constitution abhors is arbitrariness, at least where fundamental rights are concerned. And so, yes, if one has an approach to COVID which the court views as highly arbitrary, any claim that it impairs religious practice is going to be given very serious consideration, as it should. I am inclined to think that the Court came down on the wrong side here, but it’s arguable either way so there’s certainly nothing outrageous about the ruling. The principle of it is right, even if the application may be wrong.

I have considerable fear, on the other hand, that in the coming few years we WILL see some outrageous church/state rulings. For those of us who aren’t litigating those, all we can do is wait and see.

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I would suggest that making emergency regulations (this was an executive order, not a law) to cover every potential mitigation, no matter how unlikely (your “sealed plexiglass boxes” for example), would be unpractical, and expecting the Governor to do so would be unreasonable.

Thus, the Governor regulated what is not what might be.

A more practical way forward would have been for the religious organisations to propose a mitigation, and for the Governor (in consultation with his medical experts) to decide if the mitigation was sufficient to allow an exception making the regulatory imposition less onerous where such a mitigation is implemented.

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