ALIGNMENT OF PUBLIC HEALTH WITH SECULAR CONVENIENCE*

The Sars-2 COVID-19 pandemic of 2020 has slowed church litigation resolution such that even the number of posts for 2020 in these reports have compared to prior years been diminished.  Nevertheless, there have been some startling court pronouncements.  The most startling may have been the struggle to determine if during this pandemic church attendance should be treated better than, the same, or worse than secular activities.  The secular activities might viewed as “essential” or merely matters of secular convenience.  On the secular side of the equation, too, there has been a struggle to determine what was “essential” and what was merely a matter of convenience.  In a capitalistic economy in a democracy, every secular business is “essential” to someone or it would not exist.

In Roman Catholic Diocese of Brooklyn v Cuomo [consolidated with Agudath Israel of America v Cuomo], Slip Op., 592 US ____ (November 25, 2020), New York limited religious worship service attendance to 10 in red zones and 25 in orange zones regardless of the size of the church building (seating of 400 to 1,000 was treated the same as seating for 100).  Meanwhile, in the same zones, “essential” businesses like hardware stores, acupuncturists, and liquor stores remained exempt (Gorsuch, concurring*).  However, churches though singled out, received preferential treatment compared to theatres and other similar venues (Sotomayor, dissenting).  (The dissent also all but said greater restrictions on worship were warranted because of public speaking and singing which seemed to play to the transmission preferences of this particular disease.)  The United States Supreme Court enjoined enforcement of the state’s regulation as to churches pending completion of judicial review at the trial court and court of appeals levels.

The courts of the United States were much more prone to accept even draconian governmental restrictions on public and private gatherings when the pandemic began because the characteristics of the disease were still unknown and because medical response systems were still being marshalled to handle larger if not unprecedented numbers of patients.  However, seven months later, those uncertainties are far more manageable than before such that the courts are unlikely to permit unbridled and uneven regulation of worship gatherings.  It should be noted that the church plaintiffs in these cases were able to prove that their gatherings remained virtually free of outbreaks of COVID and that their efforts to control disease transmission were consistent with scientifically advised methods.  In any event, even if public health priorities might favor secular activities over religious activities, it will not going forward permit greater curtailment on First Amendment protected religious activities.

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