How to Stage a Lockdown Without Triggering Constitutional Objections

On Nov. 25, 2020, the Supreme Court decided Roman Catholic Diocese of Brooklyn v. Andrew Cuomo [1] in a 5-4 ruling. That decision struck down Gov. Cuomo's executive order limiting to ten the number of individuals who could gather in places of worship in hard-hit “red zones.”  As COVID's US toll continues to increase and vaccination efforts fumble, we can expect frustrated governors and public health officials to seek to enforce a broader panoply of lockdown orders. The Diocese case teaches a few lessons to assure new orders don’t trespass on the new-found Religious devotion of the Supreme Court.

A few months earlier, cases similar to New York’s were presented to the Supreme Court, one regarding a Nevada law and one, a California order. Both Supreme Court decisions allowed those emergency orders to stand. At first blush, that might be because both the Nevada order and California’s were less extreme than New York’s. Nevada allowed up to 50 people to congregate in houses of worship; California limits worshippers to 25% of the chapel’s capacity – or 100 people, whichever is lower.

But what really changed was the complexion of the Court. Ruth Bader Ginsburg had died, and Amy Coney Barret had taken her place. The majority of the court is now outspokenly conservative.

The founders conferred on the states police powers, including the right to govern public health and safety. One would think that public health would be above the political, or even jurisprudential, prey. Until two months ago, it was – with the police power pretty much inviolate, and courts deferring to the superior expertise possessed by State Departments of Health. Cases arising at the turn of the last century, mostly involving smallpox and yellow fever, supported quarantine and mandatory vaccination even in the face of arguments that they violated an individual’s autonomy and liberty or the Constitution’s Commerce Clause. Recent cases have held that the free exercise of religion is subordinate to public health protection with respect to mandatory school vaccinations.

The Roman Catholic Diocese case overrides previous judicial sentiment. It reflects the current courts’ belief that freedom of religion stands on equal ground with the police power to direct public health efforts, jeopardizing public health officials' freedom to act expeditiously in the face of an imminent public health threat.

Governor Cuomo could have been less tone-deaf

Because Cuomo’s order (and that of Nevada and California Governors) treated different businesses differently, religious groups were entitled to claim the law was not “neutral,” triggering a “strict scrutiny” level of review – where there is a “presumption” of direct religious discrimination. Even in this case, religious discrimination can be acceptable when public health is threatened - provided certain conditions exist, such as using the least restrictive means available. Because Cuomo’s order clumsily did not distinguish between the size of the establishment and the number to be allowed, the Court’s majority found his order overbroad.

But an underlying and burning religious conviction of the conservative Justices is also at play. In an earlier case, Justice Kavanaugh protested that houses of worship were not treated as “comparable” businesses, like florist shops and cannabis dispensaries. In the Diocese case, Justice Gorsuch complained that Houses of Worship weren’t treated as “essential” business, designations given to acupuncturists, hardware stores, and liquor stores. At first glance, these might seem sound objections. They are not.

What Are Comparable and Essential Businesses?

“Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?” asks Justice Kavanaugh

But are these businesses comparable from the viewpoint of public health as Justice Kavanaugh would have us believe? Interaction in a store or with a delivery person can occur quickly, with a minimum of speech. A Catholic mass takes an hour; Jewish services take longer. People sing – this is part of the religious experience. The volume of the priest, cantor, or rabbi's speech, when preaching, sermonizing, or chanting the Torah, is far higher than everyday speech.  Loud speech transmits more particles more efficiently than soft speech. Israel has found that synagogues are their top spot for COVID-19’s transmission

But there is something deeper that Governors need to recognize – and clues to understanding the sentiment behind the Diocese case can be seen by visiting the situation in Israel.

Israel is now undergoing its third, and quite draconian, lockdown. Like the ultra-Orthodox communities in New York that flouted regulations prohibiting gatherings, staging weddings, and funerals, Israel’s Haredi community is equally as rebellious. Israeli laws are even more restrictive than New Yorks’: “Prayers may only be held with up to 5 congregants indoors and up to 10 congregants [in] outdoors attendance.”    

But acupuncturists are allowed to stay open -- and so are liquor stores- as long as they sell food. Same, albeit to a reduced degree, with hardware stores. Israel considers these essential services, allowed to be open as long as masking and social distancing are enforced.

This time around, there is no protest from the Haredi community – either to the restriction on worship or to the disparate rules regarding secular activities. Indeed,  two of the most reactionary Rabbinic leaders of that community (including Rabbi Chaim Kanievsky, known for his measles anti-vax rhetoric) issued a joint statement calling on the “Haredi public to adhere to health guidelines to stop the spread of infection….”

Where the Israeli Haredi did fight back, however, was regarding school closures.  Notwithstanding the extreme infection rate in various Haredi cities (19% in some vs. 5.5% in the rest of Israel), Haredi groups are insistent that they would not enforce school lockdown unless all schools were shut. Some Haredi communities kept their schools open, regardless.

There is no Jewish law mandating school attendance, just as there is no requirement to attend synagogue in a life-threatening situation, despite statements in New York’s Diocese opinion “that important religious traditions in the Orthodox Jewish faith … require personal attendance.” Indeed, other Orthodox Jewish rabbinic authority has called for a total ban on religious services, as the partial ban currently in existence would be too complicated to enforce and too tempting to breach.

So how do we account for the different responses between Israel and the US?

Religious services are not comparable to exposures from secular transactions.

            Governors are making "value judgments" about the importance of religious worship. They have deemed it unimportant. …. We need Amazon Prime, but receiving communion and reciting the mourner's Kadish aren't essential.” Justice Kavanaugh

Surely providing food and medicine are essential services. Beyond that, Cuomo determined that maintaining the economy was also crucial and displayed leniency for certain businesses. The reasoning has merit. Some put financial security in the second tier category of Maslow’s hierarchy of essential needs. 

But for some, traditional religious devotion is an essential need – even though it doesn’t even appear on Maslow’s list. For others, the social interaction provided by a religious establishment is the only means of differentiating lockdown from solitary confinement. For a widow or widower living alone, seeing another human is an essential need, if only once a week. As one physician eloquently wrote, even during a pandemic, it's crucial to realize why worship is essential, at least to some.

As for schooling, some believe that the danger to children who are not in school is too high to risk. For some Orthodox community segments (at least in Israel), the failure to allow schooling poses an existential risk. When these children are not in school, it is feared that they might be ensnared by temptations that threaten the community's very existence. Jewish history is replete with tales of great Rabbis who braved their very lives to study the Torah in contravention of their oppressors' laws.

If we want to assure the Supreme Court honors public health determinations of the States, we had best be sure the States respect their constituents' spiritual needs.  Edna St.Vincent Millay wrote that she would not sell the memory of love for food – there are those who feel the same about the love of God.


[1] Roman Catholic Diocese of Brooklyn v. Andrew Cuomo