Supreme check
Columnist Chris Churchill writes about ruling on governor’s power./
Our governor, like another ill-tempered guy raised in Queens, is not good at acknowledging losses.
It therefore was not surprising that Andrew Cuomo, when discussing a new U.S. Supreme Court order that rebuked his treatment of religious institutions in coronavirus hotspots, refused to concede that the ruling was of consequence. He described the decision as irrelevant.
It was anything but.
When the nation’s highest court takes direct aim at the contradictions embedded in Cuomo’s coronavirus edicts and scolds New York’s governor for First Amendment overreach, it is a big deal. It is, you know, relevant.
The decision granting injunctive relief to an Orthodox synagogue and the Brooklyn Catholic Diocese came just be
fore Thanksgiving and was interesting enough reading to stave off the usual tryptophan-induced nap.
The best, most cutting lines were penned by Justice Neil Gorsuch writing in support of the court’s decision. He noted that while Cuomo’s executive order arbitrarily limited church attendance in COVID hotspots to 10 or 25 people, it put no such restrictions on liquor stores, bike shops, acupuncturists, accountants and other supposedly “essential” businesses.
“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?”
If you were around these parts for the strict coronavirus lockdowns imposed earlier this year, you may intuitively understand what Gorsuch meant. A lot of us found ourselves jamming into over-crowded box stores while “nonessential” smaller shops, businesses and, yes, houses of worship were involuntarily shuttered. The logic was hard to figure.
Gorsuch said that in Cuomo’s more recent order establishing zones of coronavirus restrictions, bias was clear. “The governor is remarkably frank about this,” the justice wrote. “In his judgment laundry and liquor, travel and tools, are all ‘essential’ while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
The court was not suggesting that elected officials cannot limit church attendance or impose other rules on worship during the emergency posed by the pandemic. They can. Nor was the court suggesting it would be responsible to allow churches, synagogues and mosques to operate as normal. It wouldn’t.
But Cuomo and other politicians, the court said, can’t simply dismiss that worship services are essential touchstones in the lives of many millions of Americans. Nor can they disregard that the free exercise of religion is uniquely protected by the First Amendment.
“We may not shelter in place when the Constitution is under attack,” Gorsuch wrote of his fellow justices. “Things never go well when we do.”
On Friday, I spoke with Bishop Edward Scharfenberger, head of the Roman Catholic Diocese of Albany and apostolic administrator of the Buffalo diocese. It won’t surprise you that he agrees with the court’s decision and is pleased by its affirmation of religious liberty.
Scharfenberger, echoing a point made in the ruling, noted that Cuomo limited houses of worship in so-called “red zones” to a maximum of 10 worshippers whether the sanctuary held 100 people or 1,000. How, he asked, is that not arbitrary?
“I think it’s the right decision, and I think it’s a fair decision,” said Scharfenberger, adding that “people need spiritual nourishment as well as physical.”
They sure do. We have learned in recent months, given elevated rates of depression, drug addiction and suicide, that the isolation imposed by the pandemic is leaving many Americans spiritually and emotionally malnourished. We aren’t made, by a higher power or evolution or whatever you believe got us to this point, to live this way.
Cuomo has a bad habit of framing every debate as a fight between pure enlightenment (his position) and impure partisanship (the other side), and so it was after the ruling. A court that now includes Amy Coney Barrett and a majority of conservatives, he claimed, was merely being ideological.
The governor also asserted that the narrow ruling would have no practical effect because the zones that launched the case are no longer in place. The court’s majority, though, noted that Cuomo could reinstate his edict at any time and is likely to impose new restrictions in coming months.
The important thing is that the court made its position clear. There’s a new precedent in town.
The ongoing surge is the unfortunate context of the case and a reason, I think, that reasonable people of all political persuasions can have nuanced and perhaps conflicting thoughts and feelings about the court’s decision. This isn’t easy.
It is possible, after all, to be alarmed by the toll of the virus and to also be alarmed by the extraordinary control that politicians are exercising over our lives. It is possible to believe controlling the pandemic requires decisive action while also believing New York’s ongoing departure from normal democratic governance is troubling and even dangerous.
Since the start of the pandemic, Cuomo has faced no check on his power and has essentially ruled as an autocrat. But no governor is a king. The Supreme Court made that clear.