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Can Liberty Survive in a Pandemic?

Can Liberty Survive in a Pandemic?

by Paul Engel


Abstract Outline

  • Supreme Court issues injunction against New York Governor’s religious meeting restrictions.
  • What is the most compelling government interest?
  • Does the government have the authority to issue these orders?
  • When do your unalienable rights become alienable?


Having lived most of my life in New York State, and with friends and family that still live there, I followed the case of ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK v. ANDREW M. CUOMO, GOVERNOR OF NEW YORK with great interest. With the recent Supreme Court opinion, many were claiming victory for religious liberty. However, as is often the case, the facts don’t exactly match the rhetoric.

The case started when Governor Cuomo issued an executive order dividing the state into color coded “zones”, then applying different restrictions to those zones. Since religious gatherings were more severely restricted in some of these zones rather than other businesses, The Roman Catholic Diocese of Brooklyn sued.

Contrary to what I’ve heard in the news, this was not some grand win for religious liberty. The opinion in question did not decide the case, but only that the Supreme Court would issue a temporary restraining order preventing Gov. Cuomo from enforcing his restrictions until the circuit court heard the case. While I am glad to see the decision to issue the injunction, there are still a lot of problems with the jurisprudence in play here. So let’s start by looking at the Per Curiam (by the court) opinion.

Per Curiam

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as essential” may admit as many people as they wish. And the list of essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.


I’ve talked before about this atrocious idea of certain businesses being deemed “essential” while others are not. First of all, there is nothing in the Constitutions of the United States or the State of New York that grants their governments the authority to determine if any business or activity is essential or not, much less allow them to be treated differently under the law because of some governmental edict. Besides, who decides what is and isn’t essential? Is the business that puts food on a family’s table essential? What about the church or synagogue the provides comfort and compassion to those who need it, especially while they are being effectively held under house arrest due to a virus? The very idea that governments believe they have the authority to determine not only if, but under what circumstances, you can exercise your religion is anathema to the American republic.

Because the challenged restrictions are not neutral” and of general applicability,” they must satisfy strict scrutiny,” and this means that they must be narrowly tailored” to serve a compelling” state interest.


I find this idea of different levels of “scrutiny” and “compelling government interest” for the protection of individual rights repugnant to the very idea of our constitutions. The primary, if not only, compelling government interest is the protection of individual rights.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

Declaration of Independence

Since the very idea that certain rights are unalienable, that they cannot be sold or transferred (Webster’s 1828 Dictionary), then how can any government claim the right to infringe on them for any reason? You may be asking yourself, what about situations where the rights of different individuals are in conflict? If we understand that you can only legitimately exercise a right if it does not infringe on the rights of another, then conflict between individual rights are not an issue. You have a right to protect yourself against a virus, but you cannot have a right to tell others what they must do to protect you. The very idea that any government can determine for itself whether or when it will protect the rights of its citizens should be repugnant to all Americans.

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendments guarantee of religious liberty.


The members of the court are not public health experts, but they are supposed to be experts on the law, including the Constitution, and they should also be able to read its language:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; 

U.S. Constitution, Amendment 1

It doesn’t take a master’s degree in the English language to see that the First Amendment’s restrictions are on Congress. Gov. Cuomo is not a member of Congress, neither is he acting under a law created by Congress. Therefore, this is not a First Amendment violation. Gov. Cuomo’s executive order is a violation of the Constitution of the State of New York, specifically Article I, Section 3:

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

Constitution of the State of New York, Article I, Section 3

So unless Gov. Cuomo is claiming that attending religious services is licentious, his only claim could be that they (religious services) are inconsistent with the safety of the state. Even if we believe the media and experts about the dangers of COVID-19, dangers that have heretofore not brought about the mass deaths and hospitalizations predicted, these restrictions are for the safety of the people, not the state.

Gov. Cuomo’s orders, and others like it around the country, are violations of the Fourteenth Amendment’s Equal Protection Clause:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment 14, Section 1

Sadly, I saw no application of the Fourteenth Amendment to the issue at hand in this opinion.

The dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants may hold services at 50% of their maximum occupancy. The dissents would deny relief at this time but allow the Diocese and Agudath Israel to renew their requests if this recent reclassification is reversed.

There is no justification for that proposed course of action. It is clear that this matter is not moot. … And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. … The Governor regularly changes the classification of particular areas without prior notice. If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained.


This tactic, of changing the rules in an attempt to avoid getting an unfavorable ruling, has been tried by governments in New York before. In NYSRPA v. NYC, New York City tried to have a case thrown out of court as moot because they changed the law to make it a little less offensive. Thankfully, in both cases the majority of the court did not let such blatant stalling work. As Justice Gorsuch noted in his concurrence:

That leaves my colleagues to their second line of argument. Maybe precedent does not support the Governors actions. Maybe those actions do violate the Constitution. But, they say, we should stay our hand all the same. Even if the churches and synagogues before us have been subject to unconstitutional restrictions for months, it is no matter because, just the other day, the Governor changed his color code for Brooklyn and Queens where the plaintiffs are lo- cated.

To my mind, this reply only advances the case for intervention. It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow. And by the time a new challenge might work its way to us, he could just change them again. The Governor has fought this case at every step of the way. To turn away religious leaders bringing meritorious claims just because the Governor decided to hit the off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.


Gorsuch Concurrence

Speaking of Justice Gorsuch, he pointed out several essential points in his concurrence.

Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. … Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles.


I’ve already mentioned the fact this is not a First Amendment issue, but I would expand on Justice Gorsuch’s comment. Government is not free to disregard any part of the Constitutions they act under, at any time.

Todays case supplies just the latest example. New Yorks Governor has asserted the power to assign different color codes to different parts of the State and govern each by executive decree. …

The only explanation for treating religious places differently seems to be a judgment that what happens there just isnt as essential” as what happens in secular 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.

Nor is the problem an isolated one. In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. … In far too many places, for far too long, our first freedom has fallen on deaf ears.


While not the core of this case, this statement is the crux of the issue when it comes to the majority of the COVID-19 orders around the nation. Where does any constitution delegate to any government the authority to establish regions governed by executive decree? Who has given any mayor or governor the authority to determine what is and is not essential? When did the American people elect medical experts as rulers over us? The answer is we never have, and hopefully we never will.

What could justify so radical a departure from the First Amendments terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemics early stages based on the newness of the emergency and how little was then known about the disease. ... At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemics shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause. Today, a majority of the Court makes this plain.


The truth is, the Constitution never takes a holiday. If the Supreme Court had dealt with the violation of the rights of the people with the South Bay Pentecostal case earlier this year, then maybe Gov. Cuomo would not have had the opportunity to infringe on the rights of so many of the citizens of his state. In short, this is what happens when those we hire to do the work of government do not do their jobs. While the justices in South Bay Pentecostal were not elected, they were appointed by elected officials, consented to by elected officials, and are supposed to be held accountable by elected officials. The responsibility for the failure of both the justices and the elected officials that placed them in office to oversee them ultimately rests in the hands of the American people. Perhaps, if we hired a President and senators who looked at the constitutionality of a judge’s opinions rather than seeing them as political footballs, we would never have gotten to the point of needing this opinion.

Why have some mistaken this Courts modest decision in Jacobson for a towering authority that overshadows the Constitution during a pandemic? In the end, I can only surmise that much of the answer lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.


The Jacobson case is what many experts point to as allowing states to trample the rights of the people in the name of public safety. If you haven’t of heard it with these mask and stay at home orders, you are likely to hear it when the calls for vaccination mandates stop being hypothetical and become real in many of our states. This is another example of the courts hiding from their duty and their oath to support the Constituiton. I discuss Jacobson more in my article on Force Vaccinations.

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.


I question just how grave this “pandemic” is. Reports of the over-counting of COVID deaths and questions about the accuracy of some of the tests used, not to mention the almost complete lack of context in media reports, all lead me to believe this virus is not as dangerous as we are being told. That said, these men and women on the court are not medical experts, they are there to try controversies and protect the rights of the American people. Sadly, while the court is attempting to protect religious liberty, in general it seems they are more interested in finding ways to allow governments to do what they want regardless of what the Constitution says.

Kavanaugh Concurrence

To be clear, the COVID–19 pandemic remains extraordinarily serious and deadly. And at least until vaccines are readily available, the situation may get worse in many parts of the United States. The Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.” … Federal courts therefore must afford substantial deference to state and local authorities about how best to balance competing policy considerations during the pandemic. … But judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised.


I would remind Justice Kavanaugh of language in the Per Curiam opinion, he is not a public health expert. The court is not qualified to determine how serious and deadly the virus is, nor how that might change when vaccines are readily available. Justices of the court are supposed to be experts on the law and the Constitution, yet Justice Kavanaugh makes this ridiculous claim that the Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States.” It does no such thing. Nothing in the Constitution of the United States grants any government the responsibility for the health of the people. And I am not aware of any state Constituiton that grants such power to the executive branch of a state or city. While the Tenth Amendment does say that any power not delegated to the United States by the Constituiton remains with the states, that does not include the power to violate the Constituiton. Yes, this is not a First Amendment issue, but this case is an Equal Protection issue, and I could make a case that it is a deprivation of the liberty of the people without due process, a violation of both the Fifth and Fourteenth Amendment. Yet none of those concerns were brought up in the opinion.

In light of the devastating pandemic, I do not doubt the States authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake.


Nothing in the Constituiton gives government the authority to infringe on the rights of the people in an emergency. Quite the contrary, the language of the Constitution is explicit when is says “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” There is no qualification, no exception for an emergency. A violation of these restrictions on government are a violation of the law. Perhaps, if these justices spent less time reading the opinions of their peers and more time reading the Constitution they swore to support, they would see this obvious flaw in their reasoning.


As Justice Sotomayor noted in her dissent:

Amidst a pandemic that has already claimed over a quarter million American lives, the Court today enjoins one of New Yorks public health measures aimed at containing the spread of COVID–19 in areas facing the most severe outbreaks.


At what point do your unalienable rights become alienable? How many people need to get sick, to give the government the authority to ignore the law and violate the very rights they were created to protect? The Constitution of the State of New York says:

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind;

Constitution of the State of New York, Article I, Section 3

How many cases are necessary before government is allowed to discriminate against religious worship? It also says:

No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his or her peers,

Constitution of the State of New York, Article I, Section 1

How dangerous must a pandemic be perceived for the government to ignore the commission under which it was formed and turn into an out-of-control dictatorship? How bad must an emergency be for the American people to give up their rights for the promise of safety? According to this court, enough for them to feel it’s right, regardless of what the law says. According to the citizens of the state of New York, and apparently most of the other states as well, whenever their governor says so. What does that say about the American people?

They who would give up an essential liberty for temporary security, deserve neither liberty or security.”

Benjamin Franklin