Unequal Justice Under Law?

The Diocese of Brooklyn has asked the Supreme Court to rule on a suit filed that accuses New York Governor Andrew Cuomo of unconstitutionally restricting the freedom of religion in violation of the First Amendment.

Gov. Cuomo issued an executive order limiting the number of people who could attend worship services in certain zones of the city where the state claims clusters of coronavirus have erupted. Churches, synagogues and mosques in red zones are allowed only 10 worshipers at a time, and those in orange zones are allowed only 25. At the same time, Cuomo has allowed people to gather without restriction in businesses deemed “essential”. The diocese contends that the unequal treatment is a violation of the First Amendment’s guarantee of religious freedom.

The diocese argues, as well, that there have been no coronavirus outbreaks traced back to their churches, and that they have consistently practiced measures to keep their parishioners safe from the virus. Bishop Nicholas DiMarzo of Brooklyn wrote in his November 11 column for the diocesan newspaper The Tablet, “It has been our contention that Catholics in Brooklyn and Queens have been penalized by a broad-brush approach when we are not the cause of the spreading of the contagion.”

Two lower courts ruled against the Diocese of Brooklyn. Cases similar to Brooklyn’s have already been heard by the Supreme Court, which has ruled against the churches. However, those cases were determined by a 5-4 majority, with Chief Justice John Roberts joining the more liberal justices in ruling in favor of the state’s claimed concerns to mitigate the spread of the coronavirus. Also, those cases were decided prior to the death of Justice Ruth Bader Ginsburg and before the confirmation of new Justice Amy Coney Barrett. Clearly, the Diocese of Brooklyn is hoping that the new make-up of the Court bodes well for a more favorable outcome. According to Becket, a law firm that fights for religious liberty, churches in other states, including Minnesota and Wisconsin, have successfully challenged unequal restrictions placed on worship services.

The Catholic Church in Brooklyn is not the only religious community that has expressed its concern and anger over what they regard as unequal treatment by the state. Orthodox Jews in Brooklyn have protested against Cuomo’s restrictions, accusing the Governor of targeting the Jewish community.

Brooklyn is not the only diocese to raise concerns and protests against what they regard as unequal treatment. In September, Archbishop Salvatore Cordileone of San Francisco wrote an op-ed in The Washington Post complaining of his city’s restrictions placed on churches as compared to secular businesses and organizations. That same month, the Department of Justice sent a letter to San Francisco Mayor London Breed warning that her city’s restrictions on churches were “draconian” and “contrary to the Constitution and the nation’s best tradition of religious freedom.”

There is no question that the state has the authority, and even the duty, to restrict activities in the interest of protecting the community’s health and well-being. At the same time, discussions can and ought to be had on what role churches and other places of worship play in the health and well-being of the community. I have to wonder at the apparent contention of these cities that gyms and tattoo shops play a greater role in the health and well-being of the community than do churches, synagogues and mosques. Only the most cynical secularist would make that argument. It seems that some public officials are just that cynical. I have to wonder, too, at the expanding powers of the executive that the coronavirus pandemic has unleashed. Powerful people are not want to voluntarily surrender powers once obtained, even if those powers were seemingly justified by a legitimate emergency. When will these restrictions be lifted, and how quickly will they be re-imposed in the name of public health and well-being when the next “emergency” comes along?

These are not small questions. We should have answers in place in anticipation of the current emergency being prolonged and in anticipation of the next emergency. In my mind, those answers ought to give greater weight to individual liberty than to executive power.

Be Christ for all. Bring Christ to all. See Christ in all.

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