By Ed Mechmann

Back in April, when the pandemic was raging at its peak in New York, I wrote about the legal considerations relevant to quarantines and lockdowns. The regulations were very severe, and for several months our churches were closed to in-person liturgy and all our schools were closed. Nevertheless, given the situation at the time, I concluded that the restrictions were reasonable and thus constitutional.

Now, circumstances have clearly changed. The pandemic levels are significantly lower in New York. The experts have learned a lot about how to treat the disease and where it is most easily spread. The best practice now is to conduct more testing to isolate those who are sick, protect vulnerable populations, diligently practice social distancing (especially wearing a mask), and avoid large indoor gatherings that fail the social distancing rules.

The Constitution and Pandemics

The law makes clear that when the crisis changes, the regulations and the legal analysis must also change, and what was permissible earlier is not permissible later. The law governing pandemic response was well summarized by a federal circuit court earlier this year:

[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some real or substantial relation to the public health crisis and are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law. Courts may ask whether the state’s emergency measures lack basic exceptions for extreme cases, and whether the measures are pretextual – that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.

In re Greg Abbott, (5th Cir., April 7, 2020) (citations and internal quotation marks omitted)

The Supreme Court has also made clear that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div. v. Smith, 494 U.S. 872, 884 (1990). That requirement of a “compelling reason” is a very high standard. When they give exemptions to other activities, the government has the heavy burden to justify any restrictions on our religious freedom.

In short, the Constitution does not give public officials carte blanche for as long as the medical problem persists. There’s no such thing as a permanent “state of emergency” that allows the government to suspend civil liberties for the duration. As the experts gather more medical and scientific evidence about the pandemic, the government has the time, ability and obligation to develop its policies accordingly. And, most critically, the government has to craft reasonable responses that also respect constitutional rights, including the free exercise of religion.

The Governor’s “cluster initiative”.

There has recently been an uptick in the number of positive COVID cases in certain areas of Brooklyn, Queens, and some upstate areas. City and state public health officials trace these outbreaks to violations of social distancing rules by some Orthodox Jewish congregations. There is no question that there have been some violations in that community – there are numerous photos available of mass indoor and outdoor gatherings with people close together and few masks.

But rather than enforce the existing rules in those cases, the Governor chose instead a draconian blunt sweeping response. He calls it his “cluster initiative”. He ordered a complete shutdown of all “non-essential” businesses in “red zones”, as well as other restrictions in “orange” and “yellow” zones nearby. Included in that shutdown is the closure of all public and private schools, and very strict limitations on the numbers of people who can attend any kind of religious service – only 10 people in the “red zone”.

This is utterly unreasonable. Catholic schools and churches are being shuttered despite the fact that there is no evidence whatsoever that they have been the source of any kind of outbreak. Our institutions have been exceedingly diligent and have spent $18 million in implementing safety codes. It is outrageous that our law-abiding and safe schools and parishes are collateral damage from the City’s utter failure to enforce the law.

This is an egregious violation of our religious freedom. Check out the Governor’s explanation of the “cluster initiative”, which he gave in a recent phone call with leaders of the Orthodox Jewish community:

I am 100% frank and candid. This is not a highly nuanced, sophisticated response. This is a fear-driven response. You know, this is not a policy being written by a scalpel. This is a policy being cut by a hatchet. It’s just very blunt… But it’s out of fear. People see the numbers going up. ‘Close everything! Close everything!’ It’s not the best way to do it, but it is a fear-driven response. Your point is right. ‘Why close every school? Why don’t you test the schools and close the ones that have a problem?’ I know… the fear is too high to do anything other than ‘Let’s do everything we can to get the infection rate down now. Close the doors. Close the windows.’ That’s where we are.

This doesn’t even come close to satisfying the constitutional standard of a “compelling reason” to restrict our religious freedom. It doesn’t even try to offer any basis for treating our churches and schools differently from all the other random businesses that are allowed to be open, much less the places where there have been violations. There’s no science or medicine in that statement. It’s as if the public health community has learned nothing since March about how to contain the virus.

Closing our churches and schools – which have proven to be completely safe – has no “real or substantial relation to the public health crisis”. It is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

This is not a well-crafted policy driven by reason. As the Governor himself said, it’s “a hatchet” and “a fear-driven response”.

That’s panic, not sound public policy. And our religious freedom is a casualty.

Where Do We Go From Here?

The Diocese of Brooklyn went to federal court to fight these unreasonable restrictions. They were denied a temporary restraining order by a judge who erroneously gave essentially unlimited deference to the Governor. They are back in court, but lawsuits take time, so there’s no relief in sight. [UPDATE: They lost.]

Everybody wants to overcome this pandemic and stop any incipient breakouts. We have proven that we can operate safely with no spread of the disease. We have respected and followed the scientists and public health officials. And we have shown that we good and law-abiding citizens who will comply with reasonable and fair laws.

But we do not have an obligation to obey unjust laws. We have a duty to defend our sacred rights, particularly the right to worship God and to teach our faith.

There are many who say that the time has come for civil disobedience, and urge us to open the churches and open the schools. When the government is so heedless of our rights, that option becomes more and more compelling.