After our scathing derision the recent Supreme Court case prohibiting NYC from stopping parishioners to act like reckless morons, we were asked to set out how we would analyze the constitutional issues involved. Here in brief is how one might view it:
In balancing first amendment rights to assemble, with the right of all citizens not to be infected by a deadly virus and hospitals not to be flooded by avoidable Covid infections, a court should look at the alternatives in balancing the respective harms. In doing so the decisions are not that difficult and would not have been insane as the Supreme Court’s most recent one in New York. Indeed, the prohibition against indoor service at bars and restaurants actually presents a much closer case than that of synagogues and religions. In the case of bars and restaurants, the owners have an interest in keeping their business going, but patrons don’t need to be inside a bar or a restaurant to eat and drink, and Zoom, while not perfect, can be used for patrons to drink and eat together remotely. In the case of synagogues and churches, there are no owners or ownership interest and parishioners need not be inside the sanctuary to pray, and Zoom, while not perfect, will let everyone pray together. Fitness centers actually present the toughest case, because the owners have an interest in keeping their business going and members have an interest in accessing fitness machines, and Zoom won’t help members get on the machines.
