Protest Gatherings – Yes! 

Funeral Gatherings – No!

“Mayor Bill de Blasio lashed out at Hasidic residents of the Williamsburg section in Brooklyn late Tuesday night after personally overseeing the dispersal of a crowd of hundreds of mourners who had gathered for the funeral of a rabbi who died of the coronavirus.” – The New York Times, April 28

Hizzoner dispatched the police Hong-Kong-style to break up the gathering.

“Something absolutely unacceptable happened in Williamsburg tonite: a large funeral gathering in the middle of this pandemic,” the mayor said in one post. “When I heard, I went there myself to ensure the crowd wasdispersed.  And what I saw WILL NOT be tolerated so long as we are fighting the Coronavirus.”

At this point let me be very clear: I fully support lawful, peaceful protests in the wake of the horrible murder of George Floyd.

But any common-sense assessment of local government responses to recent large crowds would have to wonder, “What has happened to all the concern about the spread of the coronavirus, that once led to government clamp-downs on large gatherings, most extremely seen in de Blazio’s actions in New York?” 

Any honest examination of coronavirus statistics (featured prominently in my local newspaper every day) shows that the cases have risen somewhat in recent weeks.  They are no longer declining.

And whatever happened to “Science-driven social policy”?

Just a few days ago, Yale epidemiologist Gregg Gonsalves, was literally accusing President Trump of “genocide” for not taking stronger measure to contain Covid-19. Today, he signed the “protests against racism are more important than stopping the spread of Covid-19” letter.  – David Bernstein, “What Happened to the Public Health Emergency?” The Volokh Conspiracy, June 3, 2020

Local governments are in a lose-lose position.  If coronavirus cases and deaths increase, they will have themselves to blame for allowing large crowds to assemble with little protections and precautions.  If the cases and deaths don’t increasebecause of large crowds gathering, their tight and sometimes heavy-handed limits on religious gatherings (which they regard as equal to crowds at sports and entertainment venues) are unnecessary and excessive.

Three principles of Constitutional Law are being mauled today:

• Viewpoint Neutrality– the First Amendment’s freedom of speech provision forbids the government from giving advantage or disadvantage to any person or group based on the content of what is being expressed.
• Equality before the Law– the Fourteenth Amendment forbids the government from preferring one group or individual above another in the administration of justice.
• Free Exercise of Religion – While religious gatherings need to submit to neutral laws of general applicability, they must not be placed at a disadvantage compared to others.