“It may take a terrorist attack, a war or some other national emergency, but America will one day thank Justice Neil Gorsuch for his stirring words last week in Roman Catholic Diocese of Brooklyn v. Cuomo. “Government,” he wrote in a concurrence to the 5-4 majority opinion, “is not free to disregard the First Amendment in times of crisis.”
The case arises from restrictions Andrew Cuomo imposed by executive order in October that sharply limit attendance at houses of worship in zones designated by the New York governor as pandemic hot spots. In so-called orange zones, attendance is capped at 25 people; in red zones, at 10. That goes for churches and synagogues that can seat hundreds and that were already limiting attendance, barring singing, practicing social distancing and taking other precautions.
The Catholic diocese, along with Agudath Israel of America and affiliated entities, sued, arguing the restrictions amounted to religious discrimination. The crux of the matter was that businesses in orange and red zones, ranging from liquor stores to bike shops to acupuncturists, were subject to no such restrictions because the governor had deemed them “essential.”
“So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “Who knew public health would so perfectly align with secular convenience?” “