Within these areas, different types of establishments are treated differently, with houses of worship facing some of the strictest rules. 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.
The Court’s ruling is neither surprising nor alarming. Cuomo’s rules discriminate against religious services and thereby run afoul of the Constitution. And to fix the problem, Cuomo would not need to exempt houses of worship from the law everyone else follows, but merely ensure that churches aren’t relegated to second-class status. One approach may be to classify churches as essential and to assign all essential activities a capacity limit that takes establishment size into account. Another would be to simply let the hard capacity limits go, since houses of worship in orange and red areas are still required to keep to a low proportion of their total capacity (a third and a quarter respectively) — and because the areas at issue in the lawsuit aren’t classified as orange or red anymore anyway.