Which rights take precedence in a pandemic turned civil crisis?

If coronavirus restrictions on religious services are enforced while anti-racism mass protests are allowed, are the lockdowns still valid? And has the rule of law vanished?

Synagogue interior. Credit: Pixabay.
Synagogue interior. Credit: Pixabay.
Jonathan S. Tobin. Photo by Tzipora Lifchitz.
Jonathan S. Tobin
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him @jonathans_tobin.

The United States Supreme Court ruled last week that religious services were not exempt from government restrictions on free assembly in a pandemic. Only a few days later, what might have seemed like fair interpretation of the law may no longer seem quite so reasonable.

The government’s failure to cope with many of the mass protests and riots that followed the murder of an African-American man by a Minneapolis policeman has further undermined faith in the rule of law that had been rocked by the COVID-19 outbreak. The result is that the already shaky credibility of our elected leaders to navigate both of these crises seems to have evaporated.

The 5-4 ruling issued in the case of South Bay United Pentecostal Church v. Gavin Newsom, Governor of California, stated that California’s rules prohibiting religious services during the coronavirus pandemic were not unconstitutional.

That upset some First Amendment advocates who believe that the Constitution places heavy burdens on government, even when undertaken in an emergency, to limit the “free exercise” of religion or “the right of the people to peacefully assemble.”

But the majority held that it was “indisputably clear” that the Constitution gives officials of the states the duty “to guard and protect” the “safety and the health of the people.” That meant that California had the right to issue pandemic restrictions, even if houses of worship would have their attendance limited while other venues like supermarkets were not subject to the same rules.

Given the risks that health experts have told us are involved in holding services, the bans on services, as well as the lockdowns that shuttered much of the national economy, fell under that rubric of legitimate exercise of governmental responsibility. The principle that saving lives in an emergency gave them the power to act—a notion that is broadly similar to the Jewish religious concept of pikuach nefesh that authorizes the breaking of almost all laws to save lives—prevailed.

Those who protested these lockdowns in gatherings at state capitols were roundly denounced as endangering their lives and those of others. Their pleas to have their First Amendment rights respected were dismissed.

Not long afterwards, the same mainstream media and governmental establishment consensus that viewed public protests during a pandemic as irresponsible has disappeared.

The brutal killing of George Floyd rightly outraged most Americans, especially the African-American community, which sees it as merely the latest instance in which institutionalized racism has cost the life of an innocent black man. That outrage impelled people across the country to take to the streets to protest police brutality. Sadly, provocateurs hijacked many peaceful protests. In all too many instances, this has led to riots, violence and looting.


It has also created a divisive debate in which the rights of the people to safety and protection of property were weighed against the fear that cracking down on the chaos in the streets would be perceived as oppressive.

Much of this has revolved, as nearly everything in the bifurcated political culture of 2020 America does, around opinions about President Donald Trump. The overwhelming majority of Americans across the spectrum want both law and order, and an end to racism. But the national conversation has become polarized as arguments about race are being used as a wedge issue by both political camps.

But that still leaves us with some puzzling legal conundrums that were illustrated by an exchange between a reporter for Hamodia, an ultra-Orthodox Jewish publication and New York City Mayor Bill de Blasio.

The reporter asked how—the mass looting of parts of the city notwithstanding—it was possible for the city to tolerate mass demonstrations over the Floyd murder when the police were still enforcing pandemic restrictions on small businesses, as well as churches, synagogues and mosques.

The mayor’s answer was that “the extraordinary crisis seated in 400 years of racism” was “not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services.”

In other words, because he approved of the motives of some protesters, their demonstrations were uniquely privileged in a way that those seeking the right to earn a living or even to exercise their right to religious liberty were not. In saying this, de Blasio seemed to be articulating the policies of many of those in power.

Perhaps this is just a function of the identity politics that governs many on the left, or the plain fact that cities and states don’t have the ability to enforce the law—let alone pandemic restrictions—when so many people are determined to ignore them.

But it also retroactively turns the Supreme Court’s ruling in favor of the constitutionality of coronavirus lockdowns into a bad joke.

It’s one thing if supermarkets are allowed to stay open even if churches or synagogues are not. It’s quite another when the right to freely assemble to allege that America is a racist nation—a claim that has historic roots, but is not backed up by the facts about how many people are now actually killed by the police—is considered more important than upholding the First Amendment rights of other Americans to practice their faith or to express opinions that are not favored by the editors of The New York Times.

There’s no real debate in this country about whether George Floyd’s murderer and accomplices should be punished. But whether or not you want your church or synagogue to reopen because of fears about COVID-19, if coronavirus restrictions don’t apply to the right of one group to assemble—peacefully or not—how can they legally, logically or morally be imposed on others who want to exercise the same right?

They can’t. Yet that continues to happen, and this selective enforcement, as well as the seeming inability of our leaders to defend the lives and property of citizens, is leading to the death of the rule of law and faith in our democratic institutions.

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

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