I have mixed emotions about Roman Catholic Diocese of Brooklyn v. Cuomo

For a long time, I have argued that freedom of religion, being expressly guaranteed by name in the First Amendment, stands high in the order of non-negotiable constitutional imperatives and that the left tends to be somewhat negligent in recognizing that fact. There is a whole range of issues on which the inalienable right of Americans not only to believe and worship as they see fit but to govern their own behavior according to the dictates of their religious beliefs as long as the equally-protected rights of others are not compromised by it is endangered these days.

Still, while it's only a temporary injunction rather than a precedent-setting ruling, the "what aboutism" of the temporary injunctive relief granted in Roman Catholic Diocese of Brooklyn v. Cuomo troubles me. It involves too many apples-and-oranges comparisons for comfort.

In essence, the court found that it is discriminatory and a violation of the First Amendment for New York Governor Andrew Cuomo to limit attendance at public worship services to stop the spread of COVID-19 unless he also limits the number of people who can be in liquor stores, bicycle stores, and other commercial establishments at any one time in the same communities. Fair enough- in theory. But in practice, how many bicycle shops or liquor stores ever have numbers of customers in similar concentration as those in a church service at any one time? How many liquor stores or bicycle shops do people sing or speak in unison for extended periods or engage in other behaviors common in churches and synagogues, which are far more apt than mere buying and selling to multiply the number of viruses in the air and the likelihood of their distribution? 

The two settings are, in fact, dissimilar in enough ways to muddy the waters considerably where claims of discrimination are concerned. It's not simply that one is less likely to either spread or be infected by the virus by going to the store even for frivolous reasons than attending a mass meeting. The need to limit the number of people in a liquor store or a bike store, or even a grocery store is less obvious than the need to limit the size of public gatherings such as church services simply because they are settings in which the transmission of the virus is inherently less likely.  Bars and restaurants are better analogies to worship places when it comes to the spread of a virus than liquor stores or bike shops.

In short, Diocese of Brooklyn v. Cuomo is only granting an emergency injunction, not a ruling that establishes binding precedent. No principles of law were established here. But while the principle that what's good for the secular goose is good for the religious gander is not only valid but vital, the logic of the decision seems flawed. In any event, one hopes, for the sake of New York's people in the short-term, that Gov. Cuomo quickly issues a new order establishing prudent limits on gatherings in liquor stores and bike shops, and in churches and synagogues as well.

It seems rather silly, as a practical matter, to make him jump through that particular hoop, but it is what it is.