In response to New York Gov. Andrew Cuomo’s restrictions on religious gatherings to combat the COVID pandemic, the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, both sued. They argued that their religious freedoms had been violated and that their facilities were singled out for more stringent restrictions than “essential” businesses such as food stores, salons, and gyms.
Prior to Justice Ruth Bader Ginsburg’s passing in September, the Supreme Court heard similar cases from California and Nevada, ruling in favor of health and safety on a 5-4 vote. Last week’s ruling ended in a similar 5-4 vote — but with new Justice Amy Coney Barrett now on the court, it swung in the other direction.
I recognize that the narrow scope of the argument suggests that when we do not consider religious gatherings essential, one might perceive it as a violation of religious liberty, especially when a person can freely get a massage or a haircut. Such may be the case. And therefore, the argument is not about whether religious gatherings are essential, but the disparity in restrictions on such gatherings.
Although I question the essentiality of those permitted and unrestricted errands, were I to look at religious gatherings in a vacuum, I — as a rabbi — would still say they are non-essential. I have found comfort worshipping daily (including on Shabbat) via Zoom and other virtual means. But I also understand that such a progressive interpretation of the Jewish tradition does not satisfy some of my co-religionists. Nevertheless, there is an important scenario upon which I hope we could agree.
Leviticus 18:5 teaches: “You shall therefore keep my statutes and my rules; if a person does them, he shall live by them: I am the LORD.” Because this command (and elsewhere) states “live,” Jewish tradition has come to teach proverbially that Jews are meant to live by the law, not die by it. Rabbinic tradition unpacks the many different examples when biblically commanded laws are pushed aside in the name of saving a life and/or in the name of preventing the loss of life.
The Jewish legal concept of pikuach nefesh (loosely, saving a life) arises from this conversation. Even the Jewish Sabbath can be violated in the name of pikuach nefesh. Certainly, if a negative law can be transgressed, a positive commandment such as gathering for religious worship can go unfulfilled.
There are indeed exceptions to this concept. Some say, for instance, that this cannot be an abstract “saving,” that the individual must be in imminent life-threatening danger. However, if there is ambiguity whether a circumstance is life-threatening, we are compelled to err on the side of caution.
Yes, I want to pray with a religious quorum (a minyan). Yes, I want to gather for weddings, and b’nai mitzvah, brisses, and funerals. But we cannot. And we do not. Because of pikuach nefesh.
Reflecting on the most recent Supreme Court decision, what I fail to understand is why we are not thinking of gathering in person for religious worship in the framework of to Justice Oliver Wendell Holmes, Jr.’s opinion in the United States Supreme Court case Schenck v. United States in 1919, which established a standard for permitted speech. Though this decision later was partly overturned by Brandenburg v. Ohio in 1969, limiting the scope of banned speech to that which would be directed to and likely to incite a riot or other imminent lawless action, there are still limits. That is, even the high school civics student learns, as Holmes said, that shouting “fire” in a crowded theater is not covered by free speech.
Knowing this, certainly gathering for worship during a pandemic should not be covered either. But it should be the scope of our electorate to protect us, and the Justice Department to protect our rights.
Many of my colleagues have reopening stages and phases and plans. Our congregation does, too. But such plans rely on science, on government advisories and restrictions, and the desire, first and foremost, to keep our community and the general public safe.
Living by the law means we should never be the cause of outbreak or danger. And when we are told that our actions may lead to such peril, then we should lead by example, and not by exception.
Rabbi Avi S. Olitzky is a senior rabbi of Beth El Synagogue in St. Louis Park.
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