New York’s dictatorial Gov. Andrew Cuomo may have finally met his match. The Roman Catholic Diocese of Brooklyn, led by Bishop Nicholas DiMarzio, is asking the US Supreme Court to strike down Cuomo’s Oct. 6 executive order virtually shutting down houses of worship in areas of Brooklyn and Queens. This, even as the governor allowed supposedly essential businesses like pet stores and big-box retailers to remain open.
Cuomo insists he is battling COVID-19. The diocese counters that the governor is making a value judgment that going to Target is essential, but taking communion isn’t. The diocese is right: For devout Catholics already suffering social isolation during the lockdown, finding church doors closed is soul-crushing.
Before Cuomo’s executive order, churches were already following safety precautions, including roping off every other pew, requiring masks and urging social distancing. The executive order disregarded that and capped attendance at 10 people for all churches, even massive ones with the capacity to fit 1,200 or more souls.
Where’s the science here?
In a lower-court hearing, Bryon Backenson, an official in the state Department of Health, testified that the orders targeting the houses of worship “were made in the governor’s office,” and not by his department or its epidemiologists.
On Monday, two Orthodox Jewish groups filed a similar appeal to the Supremes for relief, arguing that Cuomo “made it impossible” for the groups to “exercise their religious faith.”
Cuomo has clashed repeatedly with certain Jewish groups holding large gatherings in defiance of social distancing. The Orthodox groups that appealed to the Supreme Court argue that they have not “violated any public-health or safety rules” but are victims of the “governor’s guilt by religious association.”
Cuomo himself admits his approach is like a “hatchet. It’s just very blunt.” Yes: Blunt and unfair.
The Jewish and Catholic groups are asking the justices to draw a line between the government’s emergency powers during a pandemic and the fundamental rights guaranteed to all of us under the Constitution. Even a pandemic doesn’t justify obliterating the First Amendment’s guarantee that we can practice religion without government interference.
It’s likely that the justices will take this case and reverse the high court’s earlier, excessive deference to a governor’s emergency health powers. Last May, after California Gov. Gavin Newsom had limited church attendance to 25 percent of building capacity, the South Bay United Pentecostal Church sued. Newsom’s rule also applied to theaters, but not to grocery stores, banks, laundromats and other businesses. The Supremes voted 5-4 to defer to the governor, with Chief Justice John Roberts joining the liberal wing.
Things are different now. Justice Amy Coney Barrett, known for her careful fidelity to the Constitution, may be sympathetic. Nowhere does the Constitution grant officials unlimited power to curb fundamental rights.
The sheer length of the pandemic is also likely to make a difference in the court’s approach. The court appears poised to step in against the repeated assaults on religious freedom. “It pains me to say this,” Justice Samuel Alito observed in a speech to the Federalist Society last week, “but in certain quarters, religious liberty is fast becoming a disfavored right.” Certainly, it’s disfavored by Cuomo and his pals in the technocratic elite.
Ultimately, there is more at stake even than religious freedom. As Alito warned, the kind of lawmaking by executive fiat that is occurring in states like New York “has resulted in previously unimaginable restrictions on individual liberty.”
Americans need to demand that their legislators limit the emergency health powers being wielded by governors. State lawmakers need to limit their duration and scope. Some states are already doing so, including Michigan and Wisconsin. Unfortunately, in a one-party state like New York, there’s no will to buck the governor.
The public ends up the loser. Imagine if New York legislators were asked to vote on shutting down churches. They wouldn’t dare. Yet Cuomo does it with impunity, just the way he is shutting down restaurants and other businesses people have spent their lives building. The ultimate remedy is to return to democratic government and end the reign of these petty tyrants.
Betsy McCaughey is a former lieutenant governor of New York.