When teaching law students about the Bill of Rights, professors often ask on the first day of class which is the first freedom protected by the First Amendment. The students invariably answer, "freedom of speech." It is not. If the framers were trying to tell us which freedom is the first among equals, they did so by listing the religion clauses ahead of the freedom of speech.
The religion clauses prohibit the government from respecting the establishment of religion and from interfering with its free exercise.
Cuomo established a color-coded system to indicate the severity of the COVID-19 infection rate by ZIP code. Red is the most severe and calls for limiting worship to 10 people per indoor venue. Orange is the next level, and it limits worshipers to 25.Since the governor did not deem the right to worship as "essential," even though he deemed campgrounds and bicycle, food and liquor shops to be essential, he imposed his 10- or 25-person limit on all houses of worship, irrespective of the size of the venue. He imposed no numerical limitations on essential venues.
Thus, a small mom and pop liquor store could be packed to the gills with customers, but a 400-seat synagogue or a 1,200-seat cathedral would still be limited to 10 or 25 people.
Perhaps the good Gov. had not thought this out carefully? Texas restrictions were 50% or 75% of capacity, with 'appropriate social distancing'.
This was such an interference with the free exercise of religion that the Roman Catholic Diocese of Brooklyn, New York, and three Jewish congregations in New York City collectively sued the governor in federal court in Brooklyn. They lost. Last week, the Supreme Court interceded in a splendid 5 to 4 decision that defended religious liberty in the face of government efforts to sweep it aside.
Roberts choosing to be inconsequential again.
Reading the court's decision, and particularly the thoughtful and brilliant concurrence by Justice Neil Gorsuch ‐ who wrote that "government is not free to disregard the First Amendment in times of crisis" ‐ one can see that Cuomo lost this case because while he may understand the science, he does not understand the jurisprudence.
Freedom of religion is not the first freedom by mistake. It was the judgment of the framers that this freedom is as essential to human fulfillment as are any other free choices that free people make.
By failing to recognize that natural, historic and jurisprudential truism, Cuomo doomed his executive order to the ash bin of history.