About a month after Mayor Bill de Blasio personally led a police raid on the funeral of a Hasidic rabbi in Brooklyn, which he described as an intolerable threat in the COVID-19 era, the Mayor of New York visited the same district to addressing a crowd of people. protesters who had gathered in response to the death of George Floyd. Far from ordering them to disperse in the name of public health, the unmasked mayor enthusiastically expressed his solidarity with the protesters.
The contrast between de Blasio’s anger at Jewish mourners and his request for political protesters figures prominently in last Friday’s decision by a federal judge who found the restrictions inspired by a New York pandemic on religious gatherings unconstitutional. The ruling, which says that COVID-19’s control measures violate the First Amendment’s guarantee of religious freedom when they make arbitrary distinctions between religious and secular conduct, is a warning to politicians across the country as restrictions loosen. radicals who imposed in the name of flattening the curve.
“Something absolutely unacceptable happened in Williamsburg tonight,” Blasio tweeted on the day of the funeral raid. “When I heard, I went there to make sure that the crowd was dispersed. And what I saw WILL NOT be tolerated while we are fighting the Coronavirus. “
De Blasio added: “My message to the Jewish community, and to all communities, is that simple: the time for warnings has passed. I have instructed the New York Police to immediately proceed to summon or even arrest those who gather in large groups. It is about stopping this disease and saving lives. Period.”
But that period turned out to be a comma, followed by an exception for large outdoor gatherings promoting a cause that appealed to the mayor’s progressive instincts. As US District Judge Gary Sharpe noted when he issued a warrant against the boundaries of New York’s religious services, both de Blasio and Governor Andrew Cuomo actively encouraged recent protests against police brutality.
Sharpe agreed with the plaintiffs, two Roman Catholic priests from upstate New York and three Orthodox Jews from Brooklyn, that De Blasio and Cuomo had created a de facto distinction between religious and political meetings. He also pointed out explicit restrictions on religious activities that did not apply to secular activities that present similar risks of virus transmission.
The rules limited attendance at church and indoor synagogue services to 25 percent of capacity, while allowing multiple businesses, including stores, offices, salons, and restaurants, to operate at 50 percent of capacity. and do not impose any limits on special educational services. The state “specifically authorized outdoor in-person graduation ceremonies of no more than 150 people” while imposing a 25-person limit on outdoor religious gatherings, including masses, funerals, and weddings.
The Supreme Court has said that generally applicable neutral laws that restrict religious activities are consistent with the First Amendment. But she has also said that laws that place special burdens on religious activities are subject to strict scrutiny, meaning they are unconstitutional unless they are specifically designed to achieve a compelling government interest.
Sharpe concluded that the New York rules were not generally applicable and could not pass the strict scrutiny test. While that analysis seems straightforward, federal appeals courts have been divided on the question of whether state restrictions on religious services are neutral and generally applicable.
Last month, when the Supreme Court refused to issue a court injunction against California restrictions, Chief Justice John Roberts rejected the idea that the state was discriminating against houses of worship by applying special rules to them, a position that puzzled to the four dissidents. When churches, synagogues, mosques, and temples are prepared to follow the same rules of social distancing and hygiene that apply to other settings where people gather for long periods of time, they thought that there is no rational basis for treating them. differently.
Courts are understandably reluctant to make dubious decisions at the local and state levels about how best to treat a contagious and life-threatening illness. But this is one of the areas where the Constitution requires a less deferential approach.
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