There are already civil liberties questions regarding whether mass lockdowns of American society to combat the spread of coronavirus are permissible under the Constitution. That said, there’s been a grudging agreement that something needs to be done, at least to the point where there hasn’t been any major legal challenge to the various lockdown orders across the United States.
However, I don’t particularly know what to make of a threat by New York Mayor Bill de Blasio to “permanently” shutter any place of worship that continues to hold services in the face of a citywide ban on gatherings.
Yes, if your congregation continues to meet, says the mayor, you could be done for good.
“If you go to your synagogue, if you go to your church and attempt to hold services, after having been told so often not to, our enforcement agents will have no choice, but to shut down those services,” de Blasio said Friday, according to a transcript from the news conference.
“I don’t say that with any joy. It’s the last thing I would like to do, because I understand how important people’s faiths are to them, and we need our faith in this time of crisis. But we do not need gatherings that will endanger people.
“No faith tradition endorses anything that endangers the members of that faith. So, the NYPD, Fire Department, Buildings Department, everyone has been instructed that if they see worship services going on, they will go to the officials of that congregation, they’ll inform them they need to stop the services and disperse.”
And if they continue to hold services after fines are issued, well, poof. De Blasio said that fines would be the first line of action. That would, hopefully, get the congregations to cease meeting.
“If that does not happen, they will take additional action up to the point of fines and potentially closing the building permanently,” he said.
De Blasio: churches and synagogues that hold worship services may be closed permanently pic.twitter.com/kdUsdbP2YO
— Matthew Schmitz (@matthewschmitz) March 29, 2020
“A small number of religious communities, specific churches and specific synagogues, are, unfortunately, not paying attention to this guidance even though it’s so widespread,” de Blasio said.
“You’ve been warned. You need to stop services. Help people practice their faith in different ways, but not in groups, not in gatherings that can endanger people.”
Yes, there’s no better way to get recalcitrant faith communities still holding services in the midst of a ban on social gatherings to stop than to tell them “you’ve been warned.”
There’s no question that the First Amendment’s guarantee of religious freedom is powerful — so much so that it supersedes efforts to stop the spread of a deadly disease, according to Constitution expert KrisAnne Hall.
“There is nothing in the law or precedent to establish a blanket and arbitrary assertion of ‘state of emergency’ as an unquestionable authority,” Hall wrote in an Op-Ed for The Western Journal. “There is also nothing in the law or precedent to support a restriction on the number of people who can assemble in a church, for health reasons or otherwise, as a criterion for denying the essential right of freedom of religion.”
But another First Amendment scholar, Eugene Volokh, told The Associated Press that the circumstances surrounding the coronavirus outbreak muddy the waters.
If religious groups argued they were being singled out for separate treatment, it would be one thing, Volokh, a law professor at the University of California, Los Angeles, told the AP.
“But if you’re just imposing the same burden on everybody, for reasons completely unrelated to religiosity of the behavior, that is likely to be permissible,” he said.
It’s unclear, of course, whether de Blasio’s statement was properly thought through. I would seriously question any church that continued to meet in person in the midst of the coronavirus pandemic.
However, given the problematic legal nature of any order that limits the freedom of assembly, how can any official justify permanently shutting down a house of worship or a congregation, no matter how ill-informed their decision to continue meeting in person was.
And in terms of something being counterproductive, if you’re going to face a court case over the myriad of orders issued by state and local governments these past few weeks, the legal threat of ending a faith community’s ability to meet in perpetuity is the closest you can come to a slam-dunk legal case.
What part of U.S. case law makes de Blasio think that this will pass muster before the courts? We may be in terra nova thanks to the coronavirus crisis, but the First Amendment still applies here and shuttering a church, synagogue or mosque permanently doesn’t seem to mesh with it. Furthermore, if this goes before the court and injunctive relief is granted, what’s to say that other groups and individuals won’t use it to topple other state and local coronavirus orders? If that happens, de Blasio could be doing the cause of public health a disservice of cataclysmic proportions.
And even if they aren’t toppled — is this really what de Blasio’s inept administration wants to spend its time in court arguing about? Whether or not the city’s government has the ability to extinguish a religious community permanently?
It’s not going to sound as nice in court as it does at a news conference — particularly when the coronavirus threat will end but the ban on the congregation meeting won’t, under de Blasio’s threat. This would be petty tyranny in the midst of the coronavirus crisis, plain and simple.
I don’t think that’s what de Blasio meant at all, though, inasmuch as he could be said to mean anything with great seriousness.
This was another politician preening in front of a camera, trying to sound tough. Here we have yet another elected official who’s imagining themselves in an Aaron Sorkin drama, solving yet another problem by saying or doing something dramatic (if not constitutionally sound).
My assumption is that we don’t have to worry about de Blasio actually going through with what he threatened Friday. The mayor can have his moment of President Bartlet cosplay so long as someone with con law chops pulled him aside after the news conference and said, “Ah, yes, so about that church closing thing, Mr. Mayor…”
There is, of course, the unfortunate possibility that de Blasio’s crazy enough to go through with this, though. After all, he did actually launch a failed bid for the presidential nomination, laboring under the misapprehension that what Americans were really clamoring for in a president was a mediocre mayor of the nation’s largest city. (Thankfully for de Blasio, his misapprehension was significantly less expensive than that of the other man in the field who made the same mistake.)
If de Blasio does attempt to go through with it, this won’t just end up in court, it could be the beginning of a legal cascade that hinders the capacity of state and local governments to contain the coronavirus.
Either way, it’s a heavy-handed threat that’s almost certainly unconstitutional and does nothing but erode trust and faith in Gotham’s ability to deal with COVID-19.
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