RE: Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel v. Cuomo
Let's be clear: we have not seen a lot of pro-liberty legislative or judicial heroism in the face of unprecedented arbitrary power grabs by state or local public executives in response to the pandemic. Part of this has been in a constitutionally dubious trend of the legislative branch punting regulatory authority to the unelected bureaucrats in the executive branch of government. You are seeing some pushback where a governor has an opposition legislature, e.g., in Michigan, the state supreme court struck down the law that Gov. Whitmer (D) was using, and impeachment articles were filed by 3 GOP state representatives (but opposed by the GOP speaker). And clearly the conservative wing of SCOTUS has not been swayed by alarming statistics of COVID-19 spread among the incarcerated (up to 70% in Texas), satisfied with public health leadership efforts in handling prison and jail hotspots. (Overcrowding, hygiene and other risk factors exacerbates spread, in my view violating inmate constitutional rights.)
Now I've often written against the morally corrupt mostly leftist Politics of Envy; I equally disdain separately the mostly rightist Politics of Desperation, the fear of uncertainty/change, the social desire for stability. Note that the direction is general and not absolute. For example, the leftists are often obsessed with ideological conformity; I have often mocked Obama's "we can't afford to do nothing" soundbites, and Twitter is replete with "progressive" nags targeting any attempt to question the prescribed regimen of mask wearing, social distancing, and obsessive handwashing and/or public executive "health" mandates, including business shutdowns, typically but not exclusively by Dem politicos, all in the name of "science". "Progressives" have sought to coopt science as their exclusive ideological ally.
In fact, science is hardly "cut and dried" settled discipline where 97% of opinions is "proof" of consensus. Theories and hypotheses conflict and are confirmed or denied by the evidence, the data. We have a variety of commonly accepted standards, including standard treatments/units, randomization, and standard measures and scale of observations. A lot of policies are based on guidelines which have not been proven under the deliberative scrutiny of scientific methods. In fact, scientific discovery is difficult under an ongoing crisis; just note the rigorous trials candidate vaccines undergo, even as each day's delay means more cases and fatalities.
But panic and desperation make for poor political decisions as scientists try to explain the spread of the novel coronavirus. Now an obvious telltale symptom for the respiratory novel coronavirus is a respiratory event like coughing, sneezing and/or events requiring significant lung efforts, like singing or yelling. But how do we explain the spread of the disease without the presence of unknown carriers who shed the virus, including asymptomatic or initially asymptomatic/presymptomatic individuals? How do we know who are these spreaders without comprehensive testing?
Now I've already pointed out the most effective N95 respirator/masks are not generally available to the general public; people are wearing cloth masks of varying quality, and that doesn't take into account they may not be worn effectively, never mind handled carefully and laundered/replaced. Masks may be effective in mitigating the two-way volume of relevant respiratory droplets, but not very effective at all with airborne microbes.
Much of public policy is directed at the asymptomatic/presymptomatic population; obviously it would be easier simply to quarantine those manifesting respiratory symptoms, fever, etc., along with household members exposed to them. It's not at all clear that the asymptomatic individuals are driving the pandemic spread. I'm referring here to two articles appearing recently in Nature. The first argues that the infection rate from asymptomatic individuals is much lower, e.g., from over 40% less in a meta-analysis than symptomatic individuals to a quarter of the rate in a Swiss study. The meta study also estimates the asymptomatic percentage is roughly 17%, and they seem to recover more rapidly from infection. The second article focuses on comprehensive testing in post-lockdown Wuhan. They found 300 asymptomatic (out of nearly 10M residents) and 107 re-infected/no net new symptomatic. None of the 300 asymptomatic individuals had infected their 1174 close contacts. Of course, we need to be careful about generalizing from these data; clearly the third wave is being propagated somehow.
Behind the successful challenge to the New York policies, largely driven by Nursing Home Killer Cuomo, were fairly blunt limits which seemed particularly aimed at places of worship, e.g., caps of as few as 10 people in certain zones, regardless of seating capacity, while area businesses had no or more reasonable capacity. There was a disparate impact on the right to worship; the churches did not argue that they should be exempt from safety restrictions; it was more about an inconsistent application of safety regulations.
It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic - Chief Justice Roberts
In an earlier case (California), he had written:
“[Public sector executives] should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people
This, while consistent, begs the question: are there equal protection, due process and constitutional constraints on public health decisions? If and when science is unsettled, as in the case of COVID-19 spread, how are transparency and accountability established? Shouldn't burdensome, even discriminatory constraints to enumerated fundamental liberties, like the exercise of religion, be subject to strict scrutiny?
The court majority thinks that the Draconian constraints imposed by Cuomo materially impacted the free exercise of a constitutional right. They were right. Cuomo argues that the restrictions in question are no longer applicable (also noted by Roberts), that by capping attendance to 10/25 in red/orange zones was better than an explicit ban on services. What keeps public officials from exploiting sham health or other constitutional loopholes infringing on fundamental rights?
