See if you can spot the fallacy in this reasoning:
Government is not free to disregard the First Amendment in times of crisis. At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles. Today’s case supplies just the latest example. New York’s Governor has asserted the power to assign different color codes to different parts of the State and govern each by executive decree. In “red zones,” houses of worship are all but closed—limited to a maximum of 10 people. In the Orthodox Jewish community that limit might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum. In “orange zones,” it’s not much different. Churches and synagogues are limited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and synagogues, which ordinarily hold hundreds. And the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.
At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
Did you do it? I knew you could!
Congratulations: I just saved you the current $301,575 cost of attendance to get a JD degree from the institution that did such a bang-up job of honing Neil Gorsuch’s mind to such a fine edge that it was capable of writing, or at least signing, good things like this.
Or you can take the following two-minute law school course for free:
The Supreme Court’s modern rule is that religious groups have no right to any special exemptions from laws of general applicability. Under this rule, the free exercise clause of the 1st amendment protects those groups from being singled out for harsher treatment than other similar but non-religious groups.
So if A and B are the same, A and B have to be treated the same.
But if A and B are different, it’s OK to treat A differently than B, even if A is a religious group and B isn’t.
But how can you figure out if A and B are sufficiently different to apply this test correctly?
Hey, that’s where learning to think like a lawyer comes in, and that’ll cost you either $301,575, or $20, same as in town, depending.
Really all things considered I don’t know which is more embarrassing to the business we’ve chosen, this or this.