DeBlasio stumbles over First Amendment

By Rabbi Dr. Michael Leo Samuel

Rabbi Dr. Michael Leo Samuel

CHULA VISTA, California — New York City Mayor Bill de Blasio has a penchant for making controversial comments. As a politician who always tries to win the loyalty of his constituency, it is quite possible he may have dug a hole for himself that he cannot climb out of.

The Mayor said: “If your congregation continues to meet, you could be done for good. If you go to your synagogue, if you go to your church and attempt to hold services, after having been told so often not to, our enforcement agents will have no choice, but to shut down those services, … I don’t say that with any joy. It’s the last thing I would like to do, because I understand how important people’s faiths are to them, and we need our faith in this time of crisis. But we do not need gatherings that will endanger people.”[1]

One would have gotten the distinct impression that churches and synagogues were not cooperating with the need for social-distancing. Yet, this has not been the case. Across the religious divide, synagogues and churches  committed to closing their services in the interest of halting the pandemic. De Blasio’s use of threats has made everyone more nervous than before—and in doing so he has exacerbated tensions in an anxious community.

The mayor came across as a bully. But given the stressful state of our nation today, it would be easy for us to overlook his remark; De Blasio probably spoke off-the-cuff. Still, he really needs to clarify what exactly he meant and that under no circumstances would he seek to “permanently” close down places of worship. It would be prudent for him to stress the rules apply to everybody and that he has no animus toward any place of worship.

I found the mayor’s response provocative for other reasons. Yes, we understand that the mayor wants all places of worship to observe the social-distancing so we might have a better chance at containing the pandemic.  The fact he included only synagogues and churches came across as being somewhat discriminatory. What about mosques? What about Ashrams, or other religious communities? This year, the month of Ramadan will begin on Thursday, April 23 and it will last to Saturday, May 23. Will they also be subjected to this new decree?

Time will tell.

Making threats sound more like religious discrimination.  What legal authority does a government have to permanently shut down worship services?  My opinion is that there is none. The First Amendment may restrict any government from shutting down religious services on private property—even in the face of a health crisis. By coming out strongly against the synagogues and churches, he inadvertently sparked a national debate over the separation of Church and State and the fundamental First Amendment, which guarantees Americans the right to free exercise of worship.

As Kristen Waggoner observed in her op-ed article in the New York Daily News:

  • The Constitution requires officials to exercise great caution when they attempt to regulate or restrict these freedoms. Our laws ensure that governments only limit religious free exercise for a “compelling interest” of the “highest order,” and even then, only if they do it with the “least restrictive means.” That means, even if the government is taking strong action for an exceptionally important reason, it cannot restrict more religious exercise than necessary to achieve its compelling goal.[2]

Should this case come before the Supreme Court, it will be a landmark case for future generations. I suspect, but I could be wrong. The judges will probably rule that governments can never target or explicitly target religious entities. Concerning the First Amendment, Oliver Wendell Holmes (1841-1935) has famously been quoted saying, “Shouting fire in a crowded theater” is not protected free speech.[3] That is to say, the most stringent protection of free speech does not protect a man who falsely shouts out fire in a theater, while causing a panic. Just as free speech has its limitations, one could argue this principle applies to the gathering of people at a worship center. It could be contended that a pandemic poses a similar danger to all those present.

It would be interesting to see how such a case might unfold.

Oddly, certain medieval attitudes might have some practical application today. The medievalists did whatever they could to isolate plague victims as a public safety precaution. Not only were those infected by the plague quarantined, but so were their contacts, e.g., family members and friends—anyone who got in contact with them. In fact, the medievalists employed “medical police” to enforce the quarantine regulations and restrictions on movement. As you might expect, the authorities who enacted these rules received considerable criticism. But in the end, this proved to be successful way of constricting the spread of contagion.[4]

One last note:

The mayor should have urged churches, synagogues, mosques, ashrams, or any place of worship to follow the government guidance against group gatherings; had he urged them to utilize Zoom or Facebook Live, and YouTube, I think his point would have been no less persuasive. Using these media  has been very well received so far at my own synagogue. I think we will continue using it long after the pandemic is over.

NOTES

[1] https://politicodailynews.com/de-blasio-threatens-to-permanently-shutter-churches-that-continue-to-hold-worship-services-2/

[2] https://www.nydailynews.com/opinion/ny-oped-sorry-cant-close-churches-20200331-itiui23k5fbivcrzeavsfb5a4a-story.html

[3] This phrase is a paraphrase of Justice Oliver Wendell Holmes, who ruled in the cause celebre case before the United States Supreme Court, Schenck v. United States in 1919.  The court ruled that the defendant’s speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution/

[4] Ellen L. Idler, Religion as a Social Determinant of Public Health (New York: Oxford University, 2014), p.ge 410

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Rabbi Dr. Michael Leo Samuel is spiritual leader of Temple Beth Shalom in Chula Vista, California.  He may be contacted via michael.samuel@sdjewishworld.com

 

1 thought on “DeBlasio stumbles over First Amendment”

  1. Jeremy Shapiro

    For the Synagogues that were meeting, how would urging the use of “Zoom or Facebook Live, and YouTube” different than telling them not to meet at all? These were Orthodox Jews meeting on Shabbat when the use of electronics is prohibited, and where, at least for the moment, the majority opinion is that a congregation must be physically present in order to say kaddish.

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