by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Becket Fund for Religious Liberty and its ultra-Orthodox Jewish clients beat New York Gov. Andrew Cuomo in October. Can they make it two in a row? The rights not just of one faith community but all people of faith, who believe the First Amendment wasn’t somehow repealed during the coronavirus outbreak, are at stake in its advocacy in the case of Agudath Israel of America v. Cuomo.
The lawsuit challenges the right of Cuomo to enforce a discriminatory “cluster initiative,” which singles out predominantly Orthodox Jewish neighborhoods in Brooklyn for lockdown closures of synagogues, religious schools, and holiday gatherings even though only blocks away restaurants and schools were allowed to remain open.
The blatant bias shown by New York’s policies are rooted in politics and prejudice that are specific to the fervently religious Orthodox communities. But they are not fundamentally dissimilar from other restrictions that have been applied against houses of worship throughout the country. All across America, governors and mayors, drunk with the power they were either given or seized because of fear of the virus, suddenly decided they could deny rights specifically guaranteed by the Constitution.
As Justice Samuel Alito pointed out in a speech earlier this month, the pandemic has provided us 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.”