Nov 30, 2020

Supreme Court rules on COVID restrictions.

Supreme Court rules on COVID restrictions.

Religious groups challenged an executive order from Gov. Andrew Cuomo.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free or subscribe for Friday editions, and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 11 minutes.

The Supreme Court ruling on COVID-19 restrictions — plus, a question about why Jews overwhelmingly voted for Joe Biden.

New York Gov. Andrew Cuomo was taken to court by religious groups after implementing COVID-19 restrictions on gatherings. Photo: Diana Robinson

Quick hits.

  1. COVID-19 hospitalizations in the U.S. surpassed 90,000 for the first time this weekend, as rural health care facilities across the country are being overwhelmed with patients.
  2. The election recount in two Wisconsin counties confirmed Joe Biden’s victory and actually added to his margin by 87 votes. Donald Trump’s campaign paid $3 million for the recount.
  3. Pennsylvania’s Supreme Court threw out the last active legal challenge of the election results on Saturday. The court ruled that state Republicans’ effort to throw out 2.7 million ballots cast by mail had “no merit.”
  4. Iran’s top nuclear scientist Mohsen Fakhrizadeh was assassinated on Friday in a “roadside ambush” outside Tehran. Intelligence officials told The New York Times that Israel was behind the attack.
  5. Joe Biden says Jen Psaki will serve as his press secretary and announced the first senior White House communications team comprised entirely of women.
  6. BONUS: President-elect Biden broke two small bones in his foot playing with his dog Major over the weekend. Biden and Vice President-elect Kamala Harris will receive the Presidential Daily Briefing for the first time today and also meet with transition advisers.

What D.C. is talking about.

Religious freedom. In a 5-4 ruling on Wednesday night, the Supreme Court sided with religious groups in New York City over COVID-19 restrictions placed on the number of people who may attend religious services. Earlier this year, New York Gov. Andrew Cuomo issued an executive order that identified clusters of COVID-19 cases and then took actions to contain the clusters. Areas immediately around an outbreak were labeled “red” zones, where attendance at worship services was limited to 10 people; “orange” zones around the red zone were limited to 25 attendees, and “yellow” zones further outside the cluster were limited to 50% of a building’s maximum capacity.

The Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues sued Cuomo over the orders, arguing that restrictions on religious gatherings violated the Free Exercise Clause of the First Amendment and that houses of worship were being treated more harshly than comparable secular facilities. For instance, while a house of worship was limited to 10 people at a service in a red zone, there were no capacity limits on essential businesses nearby — like acupuncture facilities or liquor stores.

Gov. Cuomo pushed back on the idea that the government targeted houses of worship, arguing instead that the restrictions are focused on eliminating superspreader events, not religious gatherings, and said that the order treats religious groups more favorably than secular but similar gatherings like plays and concerts. He also noted that both synagogues and the Roman Catholic Diocese of Brooklyn were back into the yellow zone, meaning the numerical attendance restrictions no longer applied, so instead they should be operating on a percentage of capacity limits.

The court did not make a final ruling on the case but because it said the order was not “neutral,” it blocked the state from enforcing the limits while the challengers continue to litigate the case in the U.S. Court of Appeals for the 2nd Circuit. Similar cases were brought in California and Nevada earlier this year when liberal Justice Ruth Bader Ginsburg still sat on the court, and the justices deferred to the judgment of governors, ruling 5-4 to allow the orders to stand. This time, the five conservative justices on the court sided with the religious institutions.Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett agreed to block the attendance limits which were issued via executive order. Chief Justice John Roberts and the three liberal justices (Stephen Breyer, Sonia Sotomayor and Elena Kagan) all dissented.

What the left is saying.

The left disagreed with the opinion, arguing that it was unnecessary because there were no longer limits on the religious institutions. They also argued that the public health threat inside houses of worship was clearly different from that of, say, a liquor store or acupuncture center.

“Those comparisons are inapt,” Laurence H. Tribe and Michael C. Dorf argued in USA Today. “Government discriminates illicitly when it fails to treat like cases alike. One needn’t discount people’s spiritual needs to recognize that liquor stores, bike shops, groceries and pet shops differ from churches, synagogues and mosques with respect to public health. The risk of coronaviral spread is not merely a function of the number of people at a venue; it increases dramatically as they linger in a stationary position, especially when they speak or sing…

“Though religious gatherings face greater restrictions than less risky activities like shopping, they are actually treated more favorably than comparably risky secular activities, such as public lectures, concerts and theatrical performances — as the trial judge in the Roman Catholic Diocese case observed,” they added. “For the Supreme Court’s new and extremely conservative majority, it seems, failure to sufficiently discriminate in favor of religion counts as discrimination against religion.”

In The Washington Post, Steven V. Mazie argued that Barrett’s presence “looms large” in her first vote as a Supreme Court justice, even if her name does not appear anywhere in the 33 pages of opinions on this case.

“As infections and deaths spike across the country, the decision is a sign that the newly configured Supreme Court will not look kindly on steps taken by state and local officials to protect health and safety if they interfere with the autonomy of religious entities,” Mazie wrote. “This switch may come at a painful cost. ‘I see no justification for the Court’s change of heart’ from its earlier decisions, Justice Sonia Sotomayor wrote in dissent, as New York’s rules actually favor houses of worship over movie theaters and sporting arenas that are closed entirely. She warns that allowing large groups to congregate in churches ‘will only exacerbate the Nation’s suffering.’”

“Barrett is likely to ramp up the court’s support for people and organizations that demand carve-outs from rules that the rest of society must follow,” Mazie added. “In recent years, the Supreme Court has let religious corporations off the hook from an Affordable Care Act requirement that employee health insurance include free contraception. It has bowed to religious nonprofits that refuse to even sign a form giving them an exemption from this mandate. It has expanded the “ministerial exemption” to federal anti-discrimination claims for religious-school teachers. And it told a Christian baker he did not need to bake a wedding cake for a gay couple, despite the state’s protections for LGBT customers.”

What the right is saying.

The right is supportive of the decision, arguing that it appears the Supreme Court “is back as a sentinel protecting the free exercise of religion, even in a health emergency,” as The Wall Street Journal editorial board put it.

In the National Review, the editorial board argued that there is longstanding precedent for states to enact religiously neutral or generally applicable laws without violating the First Amendment, but if an enacted law does violate it then it “must satisfy ‘strict scrutiny’: It must be narrowly tailored to promote a compelling government interest using the least restrictive means available. Cuomo’s restrictions in areas classified as ‘orange’ or ‘red’ (in terms of COVID-19 prevalence) are neither generally applicable nor narrowly tailored.”

“Within these areas, different types of establishments are treated differently, with houses of worship facing some of the strictest rules,” the board wrote. “Religious services are limited to ten people in red areas, for example, while many nearby businesses, including acupuncture clinics and liquor stores, are deemed ‘essential’ and may admit as many customers as they want. This policy was clearly not tailored to minimize damage to religious observance. It doesn’t even allow higher attendance in bigger buildings. As the Court noted, some churches in New York can seat more than 1,000 people while others accommodate far fewer, yet none could host more than 25 people in orange areas and ten people in red.”

In The Washington Post, Henry Olsen wrote that the court’s decision “was possible only because of Barrett.”

“Liberals have often marveled at how religious conservatives could so fervently back a decidedly imperfect man in President Trump,” he said. “This case, in which all three of Trump’s appointees formed the majority’s backbone, shows why they did. Those worried that this case portends the arrival of religious dogma as the font of the court’s wisdom need not fear. The majority opinion clearly noted that houses of worship were subject to pandemic-related health restrictions just like any other institution; the free exercise clause does not supersede social obligations in an emergency. The court noted that there was no evidence the institutions bringing the case… had violated regulations applicable to nonreligious institutions or that gatherings there this summer had led to any outbreak.”

In Reason Magazine, Jacob Sullum wrote supportively of the ruling, pointing out that while the ruling for an injunction came down to a 5-4 vote, seven of the justices seemed “prepared to at least entertain the possibility that Cuomo's restrictions were unconstitutional.”

“It is undisputed that both the Brooklyn diocese and Agudath Israel, which sued Cuomo on behalf of the Orthodox synagogues it represents, were following strict COVID-19 safety protocols, including face masks and physical distancing,” Sullum said. “It is also undisputed that no disease clusters have been tied to their institutions since they reopened. The plaintiffs were not asking to carry on as if COVID-19 did not exist. They were instead arguing that Cuomo's policy singled out houses of worship for especially harsh treatment and was not ‘narrowly tailored’ to serve the ‘compelling state interest’ of curtailing the epidemic.”

My take.

In an ideal world, these religious institutions would be pushing their congregations to practice their faith via Zoom or live stream and stick it out a few more months until a vaccine is widely available. Many religious institutions are already doing that. I observed Rosh Hashanah and Yom Kippur via YouTube live stream this year, and while it wasn’t nearly as fulfilling as attending in person, it was exactly the kind of compromise much of the secular world is also making to limit the spread of COVID-19, and it’s a sacrifice I wish was being embraced more by my fellow Jews and other practicing religious Americans in New York.

Unfortunately, the fight is now on. From a public opinion perspective, there’s context worth adding here, namely that throughout the summer Gov. Cuomo and Mayor Bill de Blasio did a pretty good job of making it look as if they were openly antagonistic toward the Orthodox Jewish community in New York. While New Yorkers across the city were flouting COVID-19 protocols at various secular venues, the mayor and governor repeatedly singled out the Jewish community in New York for criticism in ways that were infuriating. That context and those events are what set up the bitter fight we are seeing now.

It’s also true that this ruling does not give religious institutions the right to endanger public health. Paul Krugman wrote an absurd, hyperbolic reaction to the ruling that — to my disappointment — seemed to resonate a lot on the left. “Suppose I adhere to a religion whose rituals include dumping neurotoxins into public reservoirs,” he wrote. “Does the principle of religious freedom give me the right to do that?”

The answer, of course, is no. And the court has never suggested otherwise. The justices were ruling on the Free Exercise Clause of the First Amendment, which encompasses both conduct and belief. Previous rulings and Supreme Court precedent make it clear that this clause does not exempt religious institutions from “neutral or generally applicable laws” like, say, the prohibition of murder or reckless endangerment. That’s why human sacrifices are not legal in America despite being part of some religious rituals. It’s also why Krugman can’t dump neurotoxins into public reservoirs in the name of his hypothetical religion. This ruling changes none of that.

At the same time, the argument from the religious institutions that they are facing stricter scrutiny than a liquor store down the street seems disingenuous. I am a Jew who has spent some time in Orthodox circles, so I’m particularly sympathetic to how crippling some of these restrictions are on their way of life. But I’m also conscious of the fact that someone like my older brother, who works in event planning in the music industry, has watched the lifeblood of his industry (live concerts) be completely shut down. He can’t host a concert in New York City right now — under any circumstances, with any number of attendees — so why should a synagogue receive a special exemption during a pandemic that a music venue can’t?

I’ve never been inside a liquor store where 50 people were gathered together singing, nor have I ever spent more than 5 or 10 minutes inside to pick up some booze. Comparing the activities of the two as they relate to transmission risk strains credulity. Indoor events are far more applicable comparisons for how religious gatherings are being treated. In that sense, it seems Cuomo is giving religious institutions far more favorable treatment than secular entities. And there’s been a cost to that treatment: while no specific cases have been tied to these specific congregations (something that would be very hard to prove anyway, given that congregants often spend time together outside their houses of worship), COVID-19 has actually spread rapidly and killed many in New York’s Orthodox Jewish community throughout the pandemic.

The challenge for Cuomo here is a difficult one. He can’t ban large gatherings with no exceptions for fear of reprisal and a social uprising against such a “dictatorship.” He can’t sit back and do nothing because that would leave the citizens whose safety he’s responsible for to spread the virus and kill each other. It seems clear he tried to land somewhere in the middle here.

A simple solution might be to update the order and create more consistent application. Cuomo could classify churches and synagogues as essential businesses and then update state regulations to include capacity laws that take into account the sizes of such establishments. This would recognize them for the importance they have to their attendees, and also allow the state to treat them the way they do other similar establishments. This way, a church that normally seats 500 people but is currently in a “red” zone could seat, say, 50 people — socially distanced and wearing masks — while a church that normally seats 50 people may only be allowed to seat five or 10 while in a red zone.

It’s clear this order was imperfect, as many government responses during COVID-19 have been. I wish the government didn’t have to intervene at all when it’s clear indoor gatherings are dangerous right now. But if religious institutions are going to insist on in-person services, the state seems well within its rights to restrict the size of those gatherings in the same way it’s restricting them everywhere else. It looks like that will require updating the current order in a way that satisfies the court even if it upsets many New Yorkers on the way.

Your questions, answered.

Q: You state that 68% of Jews voted for Biden vs. 30% who voted for Trump.  Why do you think more Jews voted for Biden?

— Eliza from Texas

Tangle: Those numbers came from the Associated Press VoteCast data, which reflect the strong grip progressive values and the Democratic party still have on American Jews. As I noted, Muslims actually voted for Trump at a higher rate than Jews, despite the fact Trump is often described both as an Islamaphobe and a “pro-Israel” president. Like all political divisions, I’d caution not to extrapolate anything on the whole. Jews, like white, Latino or Black voters, don’t fit into a monolithic group, and can be moved out of their traditional political homes by specific historical events, candidates, or policy agendas.

Much was made about the Jewish vote heading into this election. Despite being just 3% of the electorate, there were decisive numbers of eligible Jewish voters in critical swing states: Approximately 275,000 in Pennsylvania, 113,300 in Arizona, 103,300 in Georgia and 148,104 in Wisconsin. Gallons of ink were spilled before this election predicting a Jewish flight to the right, but the opposite actually happened: it appears the Jewish vote went for Biden at a nearly historic margin, according to the Jewish Democratic Council of America.

Many people have tried to explain this phenomenon. Some of the most popular hypotheses are that Jews’ minority status, centuries of experience as oppressed immigrants or personal relationships with Jewish religious and philosophic thought have made them more sympathetic to the plight of minorities and immigrants, and thus more likely to find favor in left-wing politics. In 2020, others have argued that the social status of Jews, who tend to have higher educations and incomes than the general population, make them more likely to vote Democratic at a time when education is correlating strongly with political preference (i.e. college-educated Americans are much more likely to vote blue).

While these all seem plausible to me, I tend to buy into the theory of political scientist Kenneth Wald, who has argued that these explanations are a bit flimsy when you zoom out on a global scale. He makes the case that similar dynamics — higher education, relationships with Jewish text and previous minority or oppressed status — are present for Jews across the globe, yet Jews are only this concentrated on the left-wing political spectrum here in America.

The reason, Wald argues, is that Jewish political behavior is tied directly to the fact that the U.S. Constitution separates religion and citizenship. As he told The Washington Post, “Rather than rooting citizenship in blood or religion, the American system eliminates ethnic particularity as a condition for full membership in the political community.” This gave Jews a safe haven in America that differed from anywhere else, making them equals instead of tolerated minorities as they had been throughout history.

That attachment to a secular version of America generally led to an attachment to a classically liberal America, one that has served Democratic candidates since the 1920s. Wald’s evidence for this has been the moments in history, like when Republicans began making political campaigns that were centered on reaching out to Protestant evangelicals or promoting a Christian America, that resulted in Jews fleeing to the left.

Under Wald’s theory, this kind of talk — the alleged “war on Christmas” or focus on confirming Supreme Court justices like Amy Coney Barrett — is presumably why Jews are still breaking for Biden. When people think of Jewish support for Trump, they’re often imagining the most religious Jews, those who vote in order to strengthen Israel’s position or to receive tuition tax credits that can help facilitate more Jewish schools. Most American Jewry, though, is more interested in preserving a secular and progressive version of the country regardless (or because) of their own faith, and American Jews tend to find religious-focused politics off putting and frightening.

This, above all other policy changes and factors, has left the vast majority of American Jews fighting to preserve a more secular government — one they receive by voting for Democrats.

Reminder: You can ask a question, too. All you have to do is reply to this email and write in.

A story that matters.

From Senate leaders to the Netflix hit “Social Dilemma,” a growing chorus of observers is warning about the addictive nature of the internet and social media. Senate Judiciary Committee chairman Lindsey Graham recently borrowed language from Social Dilemma, comparing Facebook to a “slot machine” where users are opening it incessantly to figure out what they got. Like all addictions, social media addiction is most common for users who are trying to numb pain or escape boredom, and the best solution may not be regulation but more fulfilling jobs and healthier families and social interactions. Regardless, the focus on how much these platforms are impacting mental health issues is ramping up.


  • 11. The number of days Congress has to put together a spending bill to avoid another government shutdown.
  • 14. The number of days until December 14th, when the electoral college certifies the presidential election results.
  • 36. The number of days until the Georgia Senate runoff races on January 5th, 2021.
  • 51. The number of days until the presidential inauguration on January 20th, 2021.
  • 21. The number of days until the first COVID-19 vaccines could be distributed, according to Moderna’s CEO.
  • 21 million. The number of American health care workers who are expected to be first in line for a COVID-19 vaccine.
  • 13.3 million. The number of Americans who have now been infected with the coronavirus.
  • 266,875. The number of Americans who have now died from the coronavirus.

Doing good.

Until tomorrow night, I am giving half of all new subscription revenue to Heavenly HARVST, a charity that distributes food pouches with an 18-month shelf life in an effort to feed hungry Americans. It’s the first time I’ve ever done a drive of this kind in Tangle. Nearly $1,000 in donations are already headed that way thanks to the generous readers who subscribed in the last week — thank you all so much. If you’re already a subscriber, I encourage you to consider giving to Heavenly HARVST directly. If you’re not, let’s keep it rolling…

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Have a nice day.

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