Roman Catholic Diocese Part V: What Rights Are Essential?
This post is the fifth installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.” Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause. Part IV focused on mootness.
Since the outset of the pandemic, Governors have separated between “essential” and “non-essential” services. Indeed, I titled my article, What rights are essential? These distinctions can be truly arbitrary. I think many of these orders flunk even the most deferential rational basis review. For example, in Michigan, hardware stores couldn’t sell paint. These distinctions can only be upheld if the Court says “not interested.” In Diocese, the Court did not crack down on these arbitrary distinctions–yet. But the per curiam opinion seems very, very skeptical of these gradations.
The Court explained:
In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. . . . The disparate treatment is
Article from Latest – Reason.com