The recent per curium (unsigned) decision by the U.S. Supreme Court granting a temporary injunction prohibiting the governor of New York from enforcing a poorly drafted, over-bearing and constitutionally defective executive order has been misrepresented by the media to the American public.

The Executive Order under legal attack issued by Governor Cuomo restricted religious gatherings to 10 persons in so-called “red zones“ and 25 persons in so-called “orange” zones where Covid-19 infections were increasing, and was mostly directed against the Catholic and Jewish communities in New York City who it was alleged were not following social distancing in their religious observances.

The issue came before the Court on the application of the Roman Catholic Diocese of Brooklyn’s “Emergency Application for Writ of Injunction” and was joined by a similar application by Agudath Israel of America and several other Jewish institutional and individual petitioners titled, “Emergency Application For Writ of Injunction Relief Requested by 3 p.m. on Friday, Nov.20, 2020,” the critical time for beginning Shabbat preparation, prayers and practices.

The Executive Order had previously been upheld by two lower federal courts leaving these organizations with no alternative but to seek relief at the SCOTUS.

While the legal arguments, both for and against the constitutionality of the executive order are beyond the allocated word limitations of this column, the important thing to note is that the Supreme Court decision to prohibit the enforcement of the Order was not based on a full exploration of the issues or presentation of the legal arguments; but focused on the irreparable harm potentially caused by the implementation of the Order against religious institutions in the face of other entities such as restaurants, bars, gyms and other non-religious gatherings not being under any such restrictions.

In its reporting of the Supreme Court decision, the media immediately focused on the current make-up of the Court and the fact that the newest associate justice voted in favor of the request for temporary emergency relief from the Executive Order’s implementation.

The decision was 5 to 4, with Chief Justice Roberts voting with the minority, the opinion carried no long-term value as precedent, was based on the issue of immediate irreparable harm to the petitioners without the benefit of a full hearing on the merits of the case. The media, however represented the decision as based on ideology; and that it gives religious institutions license to disregard the general welfare of the American people.

While I think the Supreme Court’s decision was appropriate, I do question the manner in which the right to religious freedom is exercised by not only the petitioners, but by many religious groups of all denominations.

No group in America is more sensitive about religious freedom than the Jewish community. Although we have many differences of opinion concerning public policy issues I think there is a consensus when it comes to defending religious freedom. Government’s non-interference in how, when or with whom a person prays or otherwise expresses his religious beliefs and convictions is a cornerstone of American pluralism.

No freedom gifted to humanity by Divine Providence, however is granted to us unfettered, unqualified or unconditional. With each freedom comes the responsibility to exercise that freedom in concordance with the rights of our fellow citizens.

During this period of the Covid-19 pandemic, we are using known effective strategies to mitigate the spread of this disease so as not to overwhelm our public health facilities and to mitigate the illness and death among our people. Among those strategies is social distancing and the use of masks to help contain the disease.

The religious community is not exempt from this responsibility. In the current environment, those who, under the guise of freedom of religion, gather in large assembly and in close proximity to pray at their respective houses of worship are endangering the general welfare of the American people. They are not exercising their freedom of religion in a responsible way, and are devaluing the lives of Americans. By not socially distancing themselves in worship, they are ironically distancing themselves from the Divine Presence.

If you wish to comment or respond you can reach me at melpearlman322@gmail.com. Please do so in a rational, thoughtful, respectful and civil manner.

Mel Pearlman holds B.S. & M.S. degrees in physics as well as a J.D. degree and initially came to Florida in 1966 to work on the Gemini and Apollo space programs. He has practiced law in Central Florida since 1972. He has served as president of the Jewish Federation of Greater Orlando; was a charter board member, first vice president and pro-bono legal counsel of the Holocaust Memorial Resource and Education Center of Central Florida, as well as holding many other community leadership positions.