Are COVID restrictions on faith groups passing a constitutional stress test?

By repeating the same measures that failed to stop the virus before, faith in the government, as well as its commitment to religious freedom, is called into question.

The Chassidic Jewish community protesting COVID-19 restrictions in Brooklyn, N.Y. Source: Twitter screenshot via Jake Offenhartz.
The Chassidic Jewish community protesting COVID-19 restrictions in Brooklyn, N.Y. Source: Twitter screenshot via Jake Offenhartz.
Jonathan S. Tobin
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him @jonathans_tobin.

As far as many Jews are concerned, some Orthodox Jews are still in denial about the deadly reality of the coronavirus pandemic. The fact that many in ultra-Orthodox enclaves in places like Brooklyn, N.Y., appear to be coronavirus scofflaws by packing themselves into wedding, funerals and synagogue services, and eschewing masks and social distancing, was one thing. But by going to the Supreme Court—along with the Catholic Church, which has filed its own lawsuits on behalf of its churches—to challenge the New York State government’s rules and designations of their neighborhoods as virus hot zones, some liberal Jews think that the Agudath Israel of America organization is out of line.

Given the recent resurgence of the outbreak with the possibility of worse to come this winter, the notion of any resistance to governmental efforts to halt the contagion may seem misguided at best, and, at worst, a dangerous and myopic reaction that could cost lives. But before anyone jumps on the bandwagon of those bashing the Agudath Israel lawsuit and the anger against COVID-19 rules that it represents, we need to acknowledge some other facts that have often been ignored in the course of this bizarre and painful year in which all of our lives have been disrupted, and so much suffering and death have occurred.

The first is that it’s not clear that any of these regulations are working or are the solution to a problem that has none until the vaccines that appear ready to be distributed in the not-too-distant future are available.

The second is that many of the anti-coronavirus rules have been arbitrary and illogical, and rooted more in politics than in science.

The third is that in our rush to try and save lives from a pandemic that presented a unique challenge, many in government have essentially acted as if it also gave them the right to downgrade or abrogate basic constitutional liberties, chief among them being the First Amendment right to free exercise of religion.

It’s been a long journey since the first weeks of the pandemic when many of us worried that the most vulnerable among us—chiefly, the elderly—would be sacrificed while scarce health-care resources would be rationed and denied to those who were most at risk. Since then, the problem has not been a lack of respirators or hospital beds, but the fact that while the policies that were adopted did “flatten the curve” of the rate of infection (the original state goal of those efforts), they ultimately didn’t solve the problem of a disease that spread so easily. Lockdowns created catastrophic economic misery, as well as many other unintended consequences such as other health problems going unaddressed and distress to students not in classrooms.

The resurgence of the disease after crippling lockdowns were lifted wasn’t so much proof that people were reckless as it was that those measures didn’t work, while possibly doing as much harm as good. It’s also clear that closing down schools in the absence of any actual “science” that proves that in-classroom education is a threat to public health was more about the ability of teachers unions to exercise their clout than anything else. That’s especially true when one considers that a generation of youngsters are being negatively affected by the closures in ways that we have only just begun to understand.

It’s also true that many of the restrictions didn’t make much sense, and were, in fact, arbitrary.

The rules favored big-box retail stores run by large corporations that were left open while destroying small businesses. And most tellingly, houses of worship were closed and then severely restricted while some businesses, including some that could not reasonably be described as “essential,” like casinos, were allowed to operate virtually unhindered.

Even worse, governments that cracked down on religious believers for their gatherings were indifferent or even supportive of other mass gatherings—like the Black Lives Matter protests, whether they were “mostly peaceful” or not. Rallies for President Donald Trump were denounced as “super-spreader” events while mass celebrations for his defeat were rationalized. It’s painfully obvious that the political content of gatherings was what determined whether municipal governments would halt them.

It’s also true that as much as deference must be given to the role that the government plays in defending public health in a crisis, what has happened was something that U.S. Supreme Court Justice Samuel Alito recently accurately described in a speech as a “constitutional stress test.” He worried that under the current circumstances, “religious liberty is fast becoming a disfavored right.”

The justice made clear that he wasn’t “diminishing the severity of the virus’ threat to public health” or even “saying anything” about whether lockdown rules were “good public policy.” But he was pointing out that “the pandemic has resulted in previously unimaginable restrictions on individual liberty,” and that this had happened “by executive fiat rather than legislation.” The unchecked growth of the administrative state and the rule of unaccountable “experts” long precede the appearance of the coronavirus. But what we have experienced in the last nine months is the sweeping away of legal norms that deserves more than a passing glance, even in the midst of a public emergency.

Alito pointed out that in Nevada, the courts had deferred to the judgment of the governor of that state about how to halt the spread of the virus. But that resulted in a rule that allowed casinos to operate while severely restricting the right to attend a house of worship. Yet we’re supposed to think that these kinds of arbitrary and illogical rules are kosher, and that anyone who notices that something is very wrong is a partisan troublemaker.

As Alito said, treating the right to religious freedom as being as important as that of a casino to operate shouldn’t have been a “tough call.” If you look in the Constitution, “you will see the Free Exercise Clause of the first amendment which protects religious liberty, you will not find a craps clause or a blackjack clause or a slot machine clause.”

That’s why the reaction to the Agudath Israel lawsuit shouldn’t be a knee-jerk assumption that the Orthodox are simply being unreasonable. To the contrary, the rulings handed down by New York Gov. Andrew Cuomo and New York City Mayor Bill de Blasio, which have drawn lines that have clearly singled out Chassidic neighborhoods, raise deeply troubling questions about religious freedom being trashed. The same applies to the successful efforts of the Becket Law Foundation to help Jewish institutions like the Bais Yaakov school in Far Rockaway, N.Y., to stay open.

Doing what is necessary to save lives is a principle that is enshrined in Jewish religious law as well as common sense. But there has been little common sense shown in many of the COVID-19 rules imposed on society. That’s why we should be listening to the complaints of Orthodox Jews rather than dismissing them. And we should also be heeding Justice Alito’s warning that you don’t have to be a religious conservative to understand that the danger to all of our liberties in letting governments run roughshod over the Constitution is something that deserves more than lip service even in the midst of a public-health crisis.

Jonathan S. Tobin is editor in chief of JNS—Jewish News Syndicate. Follow him on Twitter at: @jonathans_tobin.

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