Gov. Andrew Cuomo has imposed new restrictions on businesses, mass gatherings and places of worship in towns and New York City neighborhoods with high rates of coronavirus infections — some of which also have large populations of Orthodox and Hasidic Jews. An Orthodox advocacy group, Agudath Israel of America, has filed a federal lawsuit against the new regulations on the grounds that they violate the right to free exercise of religion.
I have devoted much of my career to protecting the free exercise of religion. It is a rare thing for me to side with a government that seeks to restrict anyone’s religious practices. But this time, the government is on stronger ground.
Few constitutional rights are absolute. Free speech can be censored in extreme cases, as when it incites imminent violence. The right to freely exercise religion includes the right to take religiously motivated actions — engaging in worship and rituals and following moral rules. Very occasionally, such actions do serious harm. They cannot be absolutely protected.
No one reasonably believes that free exercise of religion protects a right to conduct human sacrifice. Faith-healing parents are prosecuted when they withhold medical care from a child, and the child dies. There is no constitutional right to refuse vaccinations for religious reasons.
With respect to both vaccinations and withholding medical care, legislatures have enacted protections for religious objectors. But no court has ever protected such conduct under the Constitution.
Pandemic restrictions are like these examples. Covid-19 kills some and permanently injures others; the threat to human life is real and immediate. Those who flout the rules endanger everyone around them, and this is sufficient reason for regulating even a worship service.
Whether a particular regulation is justified depends on its facts. How widespread is the virus in these neighborhoods? Do the regulated zones closely correspond to places where the infection rate is significantly higher? What regulation is actually needed to save lives?
The governor should have to prove his factual claims in the Agudath Israel lawsuit. But assuming that he has the facts approximately right, then the new regulations are mostly justified. The devil is in the details.
Under the Supreme Court’s current constitutional interpretation, the right to free exercise of religion is a special form of protection against discrimination. Religious exercise can be regulated only if it falls under generally applicable rules. If a restriction has secular exceptions, it must also have religious exceptions. These requirements are a challenge to governments writing Covid rules, which must be deployed quickly, adapted to rapidly changing conditions and applied to a multitude of human activities.
Lawyers for religious groups objecting to restrictions can focus on any arguably analogous secular activity that is regulated less intensively than religious activity. But the secular activities comparable to worship services are not retail stores, where few customers linger, but movie theaters, concert halls and other places where people gather in significant numbers and remain for long periods.
Nevada had trouble explaining why churches were more tightly regulated than casinos, another place where people come and stay for hours at a time. But in a 5-4 vote, the Supreme Court refused to interfere even with Nevada’s regulation, and this decision may imply an unusual degree of judicial deference in the face of medical emergency.
So Governor Cuomo has wide discretion, but he does need to make sure that any rules are truly nondiscriminatory. And it’s unclear if New York’s new rules are.
The governor’s website says that the rules prohibit all mass gatherings in red zones. There is no discrimination in that. But the actual executive order applies only to “nonessential gatherings of any size.” What gatherings are “essential” is not defined. And that is a problem.
As compared to a total prohibition, houses of worship in red zones benefit from an exception — they are limited to 25 percent of capacity or 10 people, but at least they can meet. In orange and yellow zones, houses of worship can admit larger numbers than other types of gatherings.
But some of these other gatherings can claim to be essential, and houses of worship, it seems, cannot. This is a form of discrimination that would normally require compelling justification.
In yellow zones, schools and restaurants can open without capacity limits; houses of worship are restricted to 50 percent of capacity. People linger in restaurants, and students stay in school all day; it is hard to see how the governor can defend these distinctions.
Political attacks on the new rules have emphasized that the state did not restrict the Black Lives Matter protests over the summer. Those were also mass gatherings, although they were outside, and it appears that more people wore masks, but that was hardly uniform. No large outbreak has been linked to the marches, but that could not have been predicted at the time. Both political free speech and free exercise of religion are at the heart of the First Amendment; speech is not constitutionally more important than religion.
The state’s failure to regulate the Black Lives Matters rallies was a mistake. But the state is not forever limited to the least restrictive regulation it has ever indulged in. It can restrict both political rallies and worship services if that is truly necessary to protect public health.
At the same time, the governor must define, and try to defend, the exception for “essential” gatherings. And he will struggle to rationalize the unequal treatment of schools, restaurants and houses of worship in yellow zones.
The lesson here can be briefly stated: Nondiscriminatory rules to protect human life can be applied to the exercise of religion. But the rules must really be nondiscriminatory.
Douglas Laycock is a law professor at the University of Virginia.
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