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‘Even in a pandemic, the Constitution cannot be put away and forgotten’

So declared the US Supreme Court.

And as with many things in New York right now, the cases of Agudath Israel v. Cuomo and Roman Catholic Diocese of Brooklyn v. Cuomo arose from Governor Mario Cuomo’s typical arrogance and bluster.

Despite acknowledging that the increasing number of COVID-19 cases were not serious, particularly as seen from many other States, Cuomo decided to impose religious attendance restrictions on a predominantly Jewish community in New York. As asserted by the lawyers from the Becket Fund (which represented the Jewish petitioners), Cuomo “heavily restricted worship, closed schools, and prevented Jewish families from celebrating holidays while mere blocks away, schools were open and restaurants were serving customers. Far from being scientifically justifiable, Cuomo himself has admitted that his drastic actions were taken out of a concern for public opinion, not public health, saying the lockdown zones were ‘a fear driven response’.”

In the meantime, the Roman Catholic Diocese of Brooklyn was also subjected to similarly discriminatory and arbitrary restrictions: in-person attendance for church services were limited to either 10 or 25 people, regardless of the actual capacity of the church (and many of the churches in that diocese could easily accommodate hundreds or even thousands of parishioners). The Diocese further pointed out that Cuomo’s measures imposed “‘devastating’ and ‘spiritually harmful’ burden on the Catholic community,” a burden all the more despotic as secular establishments, “everything from supermarkets to pet stores,” were allowed to stay open.

Both Agudath Israel and Catholic Diocese cases went through the gauntlet of cases, losing before federal courts, then the 2nd Circuit Court, thus setting up the appeal before the US Supreme Court.

Interestingly, a few months before, the US Supreme Court denied almost similar petitions from California’s South Bay United Pentecostal Church and Nevada’s  Calvary Chapel Dayton Valley. In the first case, Chief Justice John Roberts bizarrely sided with the four liberal justices, giving more importance to the fact that “local officials are actively shaping their response to changing facts on the ground,” all the while ignoring (as Justices Thomas, Alito, Gorsuch, and Kavanaugh point out) that there was no good reason — scientific or otherwise — to treat houses of worship less than secular establishments or businesses. Nevertheless, that same vote would prevail for the Nevada case, with the liberal justices predictably voting against religious rights.

However, the tide seemed to change come October: in the case of Lebovits v. Cuomo, an attempt was made to shut down Bais Yaakov Ateres Miriam, a New York Orthodox Jewish girls’ school. This despite the latter implementing competent health protocols, underscored by the fact that the school — after months of being open — did not even have one single COVID-19 case. In this instance, New York backed off after the case was filed, acknowledging it had no basis to impose such closure.

These cases essentially call to mind 2018’s Masterpiece Cakeshop case (where the owner Jack Phillips refused to create a cake specific for a gay “wedding”), particularly for the blatant display — as can be similarly seen in the present cases — of progressive hostility to religion. Thankfully, the US Supreme Court would have none of this nonsense: “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

In the Philippines, after the battering that religious rights have had (see the RH Law and St. Scholastica cases), religious freedom has seemingly experienced a resurrection (pun intended) of sorts. In Celdran vs. People of the Philippines, the Court of Appeals ruled (and sustained by the Supreme Court): “religious freedom … has a preferred position in the hierarchy of values.”

Going back to Agudath Israel and Catholic Diocese, the Supreme Court (with a majority this time of Justices Thomas, Alito, Gorsuch, Kavanaugh, and Coney Barrett) granted a request for injunction on Nov. 25, noting that the petitioners “have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest.”

The Supreme Court also highlighted the discrimination: Cuomo’s measures essentially say that “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, campgrounds, 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.”

And thus Gorsuch’s marvelous concurring statement: “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.”

Hopefully, the foregoing inspires a greater assertion of and respect for religious rights in the Philippines as well.


Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula

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