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How should we view C19 restrictions on churches? Precedent says that reasonably based, content neutral restrictions that apply to everyone (such as prohibitions on peyote) and are not directed at religion, may be constitutional. 1/8
Actions targeted at religion must be narrowly tailored to a compelling government interest and applied neutrally. Many restrictions can survive above but few survive this test. The majority relied on this to rule against Cuomo and it was an easy case. 2/
I think they are missing two things. 1. Capacity limits also raise issues with the right to assembly and association. Paired with religious freedom, they should be on their face unconstitutional. 2. Some other health guidelines intrude into religious observance. 3/
Ex. restricting communion or singing. They often are reviewed under the first “rational basis” test but that would turn the First Amendment on its head. The government shall make no law respecting the free exercise of religion. It’s a hard no - not “unless you have a reason”. 4/
Limits on assembly should be applied neutrally and may be limited only with narrowly tailored time, place and manner restrictions. The logic behind allowing the protests was this would be impossible to limit constitutionally. The same logic applies to all church services. 5/
Brief, neutral restrictions for public safety can survive, but they must be extremely compelling and very narrowly tailored. To justify them, the government has the burden of proof. That is the key and why I think these laws are unconstitutional on their face. 6/
If the government has the burden of proof, then courts should not defer to it. Rather, it must demonstrate that its restrictions work and no less restrictive measures would. No government has even tried demonstrating this and none could based on existing science. 7/
Simply put, there is insufficient scientific evidence to justify most of the mandates and restrictions. As such, the government could never meet its burden of proof and its infringement on civil liberties should fail. The courts should strike down the measures. 8/8
