well it bothers me that they used the idiotic argument of liquor store specifically. I'm sorry but again you would think people in the supreme cour be have the brains to tell the difference between 5-10 mins in a store, and 1-3 hours in a building with lots of people and singing. Plus how many outbreaks linked to churches? It really just comes off as them wanting to make religions exempt from the rules everyone else has to obey with.
Let’s examine the order, shall we?
First, the Court announces the legal standard. “The applicants have made a strong showing that the challenged restrictions vi- olate “the minimum requirement of neutrality” to religion.”
This is not a new principle. This dates back to, at least, Enployment Division v Smith, reaffirmed in Church of Lukumi Babalu Aye, Inc. v. Hialeah.
The Court subsequently states its conclusion. “But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.1“
How do they arrive at the conclusion the regulations implicate the neutrality principle?
First, synagogues and churches cannot admit more than 10 people but “essential” businesses have no limit in “red zones.”
“And the list of “essential” businesses includes things such as acupuncture facilities, hardware stores, camp grounds, garages, liquor stores, as well as many whose services are not limited to those that can be regarded as es- sential, such as all plants manufacturing chemicals and mi- croelectronics and all transportation facilities.”
“ The dis- parate treatment is even more striking in an orange zone. While attendance at houses of worship is limited to 25 per- sons, even non-essential businesses may decide for them- selves how many persons to admit.”
“At the hearing in the District Court, a health department official testified about a large store in Brooklyn that could “literally have hundreds of people shopping there on any given day.” App. to Application in No. 20A87, Exh. D, p. 83. Yet a nearby church or synagogue would be prohibited from al- lowing more than 10 or 25 people inside for a worship ser- vice. And the Governor has stated that factories and schools have contributed to the spread of COVID–19, id., Exh. H, at 3; App. to Application in No. 20A90, pp. 98, 100, but they are treated less harshly than the Diocese’s churches and Agudath Israel’s synagogues, which have ad- mirable safety records.”
Okay, so essentially, churches and synagogues have limits, with praise worthy safety records. Other entities, like factories, hardware stores, acupuncture, laundromats, banks, do not have restrictions, although some have contributed to spread of the virus.
So, the Court is essentially saying churches are deemed, by the government, as not “essential” and therefore, have capacity limits. However, other entities, such as hardware stores, laundromats, acupuncture, etcetera, are declared “essential” by the government and have no limits, despite the fact there are people present for extended periods of time. And these limits on church are irrespective of the fact they have not been documented to contribute to spread, the use of masks, social distancing, size of structure, forgoing singing, and disinfect.
As Gorsuch noted in his concurrence, “The only explanation for treating religious places differently seems to be a judgment that what hap- pens there just isn’t as “essential” as what happens in sec- ular spaces. Indeed, the Governor is remarkably frank about this: 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.”
So, since neutrality and general applicability are lacking, and a problem is the government, in its esteemed wisdom, determines what is or isn’t “essential,” doesn’t seem to be making the designation with any logical or rational consistency.
So, strict scrutiny is then applied and the rest of the opinion focuses upon the regulation as not being least restrictive.
“[T]here are many other less restrictive rules that could be adopted to mini- mize the risk to those attending religious services. Among other things, the maximum attendance at a religious ser- vice could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches immediately affected by the Executive Order can seat at least 500 people, about 14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to 400. It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other ac- tivities that the State allows.“
