How do we justify to ourselves the lack of adherence to safety guidelines?

When I wrote about the coronavirus in early November, the death toll was at the 230,000 mark, with the US daily death toll averaging 1,000. At the beginning of December, there were 2,500 victims on some days and 100,000 hospitalized. Looking back at those figures helps us see the horror we now face.

Nearly two months later, there have been nearly 420,000 fatalities — more than the number of American soldiers killed in all of World War II — with a daily average of close to 4,000. It took four months to reach the 100,000 mark, but little over a month to go from 300,000 to 400,000.

Several weeks ago, I wrote an article in these pages describing Agudath Israel of America’s successful legal challenge to the coronavirus-related restrictions New York Governor Andrew Cuomo placed on shuls and yeshivos this past fall. The United States Supreme Court, followed by a lower federal appellate court, ruled that those limitations violated Orthodox Jews’ First Amendment rights to free religious practice.

I’m happy I wrote that piece, and there isn’t anything in it I would change. I agree with the legal analysis. I agree that the governor unfairly targeted our community. I agree that far more reasonable, appropriately tailored restrictions could have been imposed.

In its brief, Agudath Israel averred that the plaintiff synagogues that were among the parties to the suit “have carefully and successfully complied with mask requirements, social distancing, and capacity constraints. Yet the Governor’s guilt-by-religious-association restrictions have made it impossible for Applicants and their members to exercise their religious faith.” That’s all true, and is part of why it was the right thing for those plaintiffs to bring this suit. I’m happy we won.

But there’s something I wonder about, too. Here’s what the Second Circuit Court of Appeals wrote in its opinion in late December in favor of our community (emphasis mine):

[T]he Governor’s identification of [COVID-19 transmission] risks relied on broad generalizations made by public-health officials about inherent features of religious worship, [for example, “the congregants are arriving and leaving at the same period and are together over an extended period of time.”] ….Even taking these assertions at face value, however, the Governor must explain why the Order’s density restrictions targeted at houses of worship are more effective than generally applicable restrictions on the duration of gatherings or requirements regarding masks and distancing. The Governor may not, of course, presume that religious communities will not comply with such generally applicable regulations.”

Translated from “legalese,” the court is saying that instead of imposing density limitations on shuls, the governor ought to have relied on the restrictions already in place regarding the duration of gatherings and existing requirements regarding masks and distancing. The court criticized the governor for presuming “that religious communities will not comply with such generally applicable regulations.” That is indeed presumptuous.

With that in mind, let me restate what attorney Avi Schick added to our discussion:

After analyzing what the courts said in their rulings, it’s important to note what they did not say. The Second Circuit’s decision doesn’t say that safety and health precautions aren’t necessary, nor that the pandemic isn’t real and dangerous. This decision doesn’t say that social distancing isn’t necessary and appropriate, nor that masks aren’t required or that hand sanitizing isn’t helpful. The Court struck down attendance limits for houses of worship. But all the general health and safety rules remain in place.

In other words, while the court ruling preserves our rights, and recognizes that we were unfairly targeted, it in no way sanctions davening without masks and social distancing, and making weddings and other events with people dancing and singing without masks.

How, then, do we explain our inconsistencies? We seek out the best doctors when someone is critically ill. We pay for out-of-network services. A critical issue for our community is the ability to follow the halachah on end-of-life issues despite the prevailing antithetical attitudes of doctors and hospitals on these matters. Communal activists have done wonderful work to establish relationships with hospital ethics committees and make the case that prolonging an elderly or terminally ill relative’s life for weeks or even days is a paramount moral concern for us.

How is it that we are so careful about chayei sha’ah and so neglectful of chayim altogether? With nearly a half million people dead, with so many of our best and most beloved gone — relatives, friends, and neighbors, zekeinim and zekeinos and many others not old at all — how do we justify to ourselves the lack of adherence to safety guidelines?

Writing recently at the Volokh Conspiracy legal blog, Professor Joshua Blackman addressed a December federal court ruling in California upholding a complete ban on indoor worship in which the judge wrote that “the Constitution is not a suicide pact. The First Amendment may not be used to make it one.”

In response, Professor Blackman wrote, “Come on…. houses of worship follow rigorous protocols. They prohibit singing and chanting. They time their exit and entry to prohibit crowding. Judges are wedded to this March 2020 stereotype where people chant and scream at the top of their lungs for hours on end. This narrative is simply false. Please, get on with the times.”

Who is right — Blackman or that judge? You decide.

Purim — when one year ago, the plague slammed in to our community unawares and within weeks was devastating it — is just a month away. This year, 420,000 lives later, we have no excuse.

Originally featured in Mishpacha, Issue 846. Eytan Kobre may be contacted directly at kobre@mishpacha.com