New York City Mayor Bill de Blasio (D) on Friday suggested “permanently” closing houses of worship which defy government orders to avoid large gatherings during the COVID-19 coronavirus pandemic. The following de Blasio quote has been passed liberally among conservatives: “Everyone has been instructed that if they see worship services going on, they will go to the officials of that congregation to inform them they need to stop the services and disburse. If that does not happen, they will take additional action, up to the point of fines and potentially closing the building permanently.” The “everyone” referenced was the NYPD, FDNY, and the buildings department. After saying the foregoing, de Blasio said, “That will begin this weekend. Again, I’m sorry I have to tell you this, but anyone who is hearing this, take it seriously: you’ve been warned; you need to stop services. Help people practice their faiths in different ways, but not in groups; not in gatherings that could endanger people.”
What much of the social media uproar has not passed along is the considerable caution which prefaced the mayor’s now-controversial statements:
Another area — and it pains me to say this — and it’s probably a pretty limited phenomenon, but it has to be addressed — I’ve spoken to religious leaders of all backgrounds, and I want to thank them; so many of our religious leaders have really taken the lead and said to their congregations, said to members of their faith communities that we have to act differently now. The vast majority of houses of worship have stopped their traditional worship service. If they could, they went online; they went on the radio; whatever they could do. They stopped gathering people, understanding the nature of the crisis. We’ve had extradodinary support from leaders of major Christian denominations; we’ve had extraordinary across-the-board rabbinical support from all different elements of the Jewish community; and the same is true of other faiths as well. A small number — a small number — of religious communities — specific churches, specific synagogues — are unfortunately not paying attention to this guidance even though it’s been so widespread. So, I want to say to all those who are preparing the potential of religious services this weekend: 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 faiths in this time of crisis) — but we do not need gatherings that will endanger people. No faith tradition endorses anything that endangers the members of that faith.
Despite all those cautionary caveats, the truncated crux of de Blasio’s comments stuck among those who mostly appear to have not listened to the full breadth of what the mayor said:
De Blasio: churches and synagogues that hold worship services may be closed permanently pic.twitter.com/kdUsdbP2YO
— Matthew Schmitz (@matthewschmitz) March 29, 2020
“Permanently”? One good thing about de Blasio is that he takes his unconstitutional ideas so far as to not be remotely plausible. The courts would bury him. https://t.co/q5shyLi8Jr
— Seth Mandel (@SethAMandel) March 30, 2020
I guess he is not a big fan of the 1st amendment.
Maybe he should be removed from office permanently?
— Andy Schreiber (@andy_schreiber) March 29, 2020
This fits with his communism desires. Destroying religion is all part of the transition. Good thing he won’t ever be elected again.
— Patriotically Correct Since 1776 (@PCsince1776) March 30, 2020
De Blasio said rare incidents of noncompliance led to the announcement. “This means if any of our officers … tells you you need to move along, you need to move along; if they tell you you need to break up your gathering, you need to break up your gathering; it does not mean you can break it up for a few minutes and then come back; it doesn’t mean you can tell the officer you’re not going to do it,” De Blasio said earlier in the statement. “C’mon; you’ve gotten enough information to know you have to practice social distancing. I know it’s not easy … no more team sports, no more social gatherings in the park, no getting close together unless it’s your own family members, the people you live with under the same roof; those are the rules. People really need to follow those rules.”
De Blasio said he would have to use “much more serious penalties” (such as fines) to stop the spread of the virus but disliked the idea of doing so due to the already widespread economic damage the virus had caused.
The bottom line is that de Blasio cannot “permanently” (as in forever) shut down a religious community because the First Amendment forbids him from doing so. That is so simple as to not even require an analysis. Given the context of his own statements, however, it is most likely de Blasio meant to describe the closing of a building across the span of the COVID-19 crisis where there are repeat violators, as opposed to merely asking a group to disburse at any one given snapshot in time while keeping the building itself open. That’s because city officials can take actions to maintain public health in buildings generally — in a way which may cause “temporary” (that is to say — “permanent” across the span of the COVID-19 crisis) friction with religious groups.
Here, de Blasio is seeking the enforcement of public health laws. The city health department can “take such action as may become necessary to assure the maintenance of public health, the prevention of disease, or the safety of the City and its residents” under city health code. That carries with it the power to “inspect any premises, matter or thing” within the city. Section 3.09 of city code (requiring the abatement of nuisances) and section 17-142 of city administrative code (defining a nuisance as “whatever is dangerous to human life or detrimental to health,” among other things) are also relevant.
The First Amendment guarantees the freedoms of speech, assembly, and religion. Contained within the freedom of religion are several legal prohibitions on the ability of the government to act. One is the anti-establishment clause. It prohibits the government from endorsing or favoring a particular religion or sect. The traditional test examined whether the government’s action has a secular purpose, whether it has an effect which neither advances nor inhibits religion, and whether it produces excessive government entanglement with religion. Here, it is unlikely de Blasio’s enforcement actions result in a First Amendment violation. The mayor’s enforcement actions are aimed at groups in other areas as well, such as parks and sporting venues, and they are not aimed at a specific religion. Another prohibition on government action is the free exercise clause. There, the government cannot punish beliefs, but it can regulate conduct. The most famous example is Employment Division v. Smith, where conservative stalwart Supreme Court Justice Antonin Scalia wrote for a 6-3 majority (which included Rehnquist and O’Connor) that the State of Oregon could criminalize the use of the drug peyote despite its use in Native American religious ceremonies. Here, the mayor’s limits on large gatherings regulates conduct, not belief.
The freedom of assembly has occasionally caused friction with religious rights. The Supreme Court has upheld the use of municipal permits for parades. In Cox v. New Hampshire, five Jehovah’s Witnesses back in 1941 lost their case to challenge such permits. “No interference with religious worship or the practice of religion in any proper sense is shown, but only the exercise of local control over the use of streets for parades and processions,” then-Chief Justice Hughes wrote for a unanimous court. Later, in Shuttlesworth v. Birmingham (1969), another unanimous court rule that a city’s broad powers to permit gatherings was being applied in a racist manner:
There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the City Commission virtually unbridled and absolute power to prohibit any “parade,” “procession,” or “demonstration” on the city’s streets or public ways.
[ . . . ]
[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.
[ . . . ]
[P]etitioner Shuttlesworth himself sent a telegram to Commissioner Connor requesting . . . a permit to picket “against the injustices of segregation and discrimination.” His request specified the sidewalks where the picketing would take place, and stated that “the normal rules of picketing” would be obeyed. In reply, the Commissioner sent a wire stating that permits were the responsibility of the entire Commission rather than of a single Commissioner, and closing with the blunt admonition: “I insist that you and your people do not start any picketing on the streets in Birmingham, Alabama.”
The Court noted that Shuttlesworth was therefore nothing like Cox. Like Cox, de Blasio is not attempting to target religious groups specifically. It is likely, if de Blasio is challenged, a court will rule that de Blasio’s actions are not aimed at religious expression but are aimed at conduct and therefore are legal.
Over the weekend, de Blasio tempered the original comments even further in questions from several reporters about fines where large crowds have gathered and spot checks by the NYPD to clear crowded subway cars. “Thankfully, this weekend, we did not see much of that activity; I think they got the message,” the mayor said about gatherings at houses of worship. “It was a very small number of very small churches and synagogues that we were concerned about.”
“I authorized fines and closing buildings if needed,” the mayor said. He also said parks and playgrounds were venues for similar police enforcement. De Blasio acknowledged New Yorkers have been “deprived” of a lot over the last several weeks and said he was trying to keep certain sites open — so long as they are not abused. The fines authorized range from $250 to $500, he said, adding — again — “I don’t want to see that happen” and that he and officers have given people “every chance to listen.” As for those who don’t, “that person then deserves the fine” as the city “intensifies” its enforcement,” he said.
[Featured image via screen capture from CNBC/City Hall pool feed.]
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