The Supreme Court's decision striking down restrictions on religious services in New York State was announced a few ticks before midnight on Thanksgiving Eve. The restrictions were intended to combat the spread of Covid-19 and had been recommended by public health officials. I at first was inclined to attribute the timing of the announcement to sheepishness, such as probably explains the language, in Bush v Gore, about how the case was "unusual" and the Court's decision therefore not to be regarded as a precedent. But Justice Gorsuch doesn't sound sheepish:
At the same time, [New York] Governor [Cuomo] 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 pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew that public health would so perfectly align with secular convenience?
I'm not a graduate of an Ivy League law school, but I have been to church and liquor stores, also hardware stores and bike shops, and am here to tell you that Justice Gorsuch's reasoning faculties appear to have been overcome by a desire to make a rhetorical splash. When I "pick up another bottle of wine" at South Lyndale Liquors, I do not sit, for an hour or more, in an enclosed space, potentially shoulder-to-shoulder with vocalizing fellow parishioners who, in the ordinary course of things, recite aloud prayers and liturgies and belt out hymns. It's perfectly obvious that, considering what we know about how the coronavirus spreads, religious services are poisonous compared to the activities to which Justice Gorsuch implausibly connects them. This isn't theoretical. The CDC has linked a single church choir practice in Washington State to 52 new infections resulting in three hospitalizations and two deaths. Ultra-Orthodox Jews, who have forsworn public health recommendations in order to pursue their usual religious practices, have fueled outbreaks in New York City. The same calamitous effect has played out within orthodox communities in Israel.
There are activities that, for purposes of limiting the spread of Covid-19, are roughly analogous to religious services. These would include, for example, musical and theater performances, stand-up comedy shows, spectator sports, and indoor dining and bar service. There is a reason Justice Gorsuch doesn't compare religious services to any of these activities that they actually resemble. The reason is that New York State has subjected them to the same kinds of restrictions that it applied to religious services. Justice Sotomayor's dissenting opinion hits the bullseye:
Unlike religious services, which "have every one of th[ose] risk factors," Brief for AMA 6, 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. Id., at 7 ("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. . . .
Like the States in South Bay and Calvary Chapel, New York applies "[s]imilar or more severe restrictions . . . to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time." Ibid. Likewise, New York "treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods." Ibid. That should be enough to decide this case.
So it is possible after all to ascend to the Supreme Court while maintaining a grip on the obvious! I suppose, however, that Justice Sotomayor, having been appointed by a Democratic president (Obama), can be dismissed as a purveyor of "secular convenience." How about the pope? It happens that on Thanksgiving Day the New York Times published on its Op-Ed page an essay on this general topic by Pope Francis, who wrote:
With some exceptions, governments have made great efforts to put the well-being of their people first, acting decisively to protect health and save lives. The exceptions have been some governments that shrugged off the painful evidence of mounting deaths, with inevitable, grievous consequences. But most governments acted responsibly, imposing strict measures to contain the outbreak.
Yet some groups protested, refusing to keep their distance, marching against travel restrictions—as if measures that governments must impose for the good of their people constitute some kind of political assault on autonomy or personal freedom! Looking to the common good is much more than the sum of what is good for individuals. It means having a regard for all citizens and seeking to respond effectively to the needs of the least fortunate.
It is all too easy for some to take an idea—in this case, for example, personal freedom—and turn it into an ideology, creating a prism through which they judge everything.
Amen Fran! I'm with you on this one.
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