In a ruling issued on the eve of the Thanksgiving holiday, the U.S Supreme Court struck down an order by the governor of New York limiting attendance at houses of worship while allowing businesses it deemed essential to admit as many people as they wanted.
It was a 5-4 decision, with justices John Roberts, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissenting. In its order, the majority said, “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. ... These categorizations lead to troubling results.”
In his concurring opinion, Justice Neil Gorsuch wrote, “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.”
The court was correct in ruling that New York’s restrictions of houses of worship placed a burden on them that the state was not willing to place on others. Americans are an egalitarian people who insist on one-size-fits-all strategies that treat everyone equally.
The problem is that COVID-19 doesn’t treat everyone equally. Some people are more susceptible than others, while some people can test positive and not show any symptoms.
Last week, Gov. Jim Justice acknowledged that the one-size-fits-all approach is not working well in West Virginia. He said he may come up with restrictions for counties that have been affected by COVID-19 more than others.
Some targeted efforts have been tried, such as closing college bars in Morgantown, but that doesn’t always do much to help the most vulnerable people in our state, namely those in nursing homes where residents and staff are at the most risk of contracting the disease and, in the case of residents, of dying from it. Targeting the first doses of vaccine to the groups of people needing it most, as is planned, should help.
Protecting public health while keeping to the letter and the spirit of the Bill of Rights is a delicate balancing act at times. It takes more than edicts and mandates from governors. It takes responsible behavior from all of us, or at least most of us. The worst thing public officials can do is going too far with their mandates.
The Supreme Court was correct in telling governors there are some lines they cannot cross. It’s up to the rest of us to do our part and remember there are lines we shouldn’t cross, either.