New York's Orthodox Jews are taking civil disobedience to new heights as they burn their masks in protest against state crackdowns on religious gatherings — just as the Jewish New Year and Day of Atonement wind down and the harvest celebration of Sukkot begins.  This is an intensely spiritual period for families and communities who would normally gather to pray and celebrate, but not in the year 5781.  This year, history repeats itself as Mayor de Blasio and Governor Cuomo blame Jews for spreading a deadly plague.   

When the Black Death was ravaging Medieval Europe with tornadic ferocity, the Jews were scapegoated for causing its spread by "poisoning the well."  Hitler said Jews were dirty, spread disease, and contaminated the purity of the Aryan race.  Millions were massacred in tsar-ordered pogroms for the blood libel of using Christian blood to make matzah. 

But today, Jews are standing up to Hizzoner and Il Duce Cuomo, who justify their order closing schools and nonessential businesses, banning mass gatherings, and restricting worship to a maximum of ten people, by accusing Jews in certain New York ZIP codes of ignoring guidelines and causing a spike in COVID cases because of their religious observance and close-knit community.

These insular Jewish neighborhoods are done being pawns in the Democrats' election game.  If Democrat-sponsored riots and violence can endure for months, why not peaceful protests by religious groups strong-armed by state and municipal authorities?  These communities recognize the creep of totalitarianism.  They know that the jump is short from government edicts restricting assembly and work to mandatory patches or masks to papers certifying they are COVID-free, to something unspeakably execrable. 

In addition to Title VII and Religious Freedom Restoration Act violations, the Constitution thankfully is on their side. 

In 1900, San Francisco's leaders singled out the Chinese community for spreading the Bubonic Plague, despite a lack of evidence.  This was an inglorious time of intense anti-Chinese discrimination.  By attributing blame to them because of squalid living conditions and questionable hygiene, authorities were able to justify travel restrictions, mandatory vaccinations, and a quarantine around Chinatown.  Sound familiar? 

The federal district court found the quarantine unconstitutional, but the Board of Health ignored this finding and further expanded the quarantine around Chinatown while excluding non-Chinese establishments.  Chinese residents endured even worse living conditions, destitution, and starvation.  But one grocer named Jew Ho had had enough and filed suit in the Northern District of California, understandably peeved that his non-Chinese neighbors could move freely and conduct business while he remained quarantined. 

In Jew Ho v. Williamson, Republican Judge William W. Morrow stood up to this rank bigotry and again found the Chinatown quarantine unconstitutional.  He relied on the 1886 Supreme Court case of Yick Wo v. Hopkins.  Under a local ordinance in Yick, Chinese laundries were denied licenses because they were constructed of wood, not brick, and were therefore a fire risk.  Because everyone knew that Chinese laundries were wooden and non-Chinese laundries were brick, denying the licenses was just a pretext for discriminating against the Chinese laundries.  The Supreme Court concluded that while the ordinance itself was facially neutral, if "applied and administered by public authority with an evil eye and an unequal hand," such that, in practice, it discriminates "between persons in similar circumstances," it violates the Equal Protection Clause (emphasis added).

In Jew Ho, Judge Morrow reaffirmed that states have police powers to impose quarantines but cannot apply such measures in an unequal, discriminatory way.  Because San Francisco enforced its quarantine ordinance strictly against the Chinese in Chinatown, and not against others in the city who were also sick, this was an unequal application of the law in violation of the Equal Protection Clause.  For a brief discussion by Prof. Victoria Sutton on discriminatory administration of facially neutral rules, click here.  For a deeper analysis of these cases, see Victoria Sutton's Biosecurity Law & Policy (Vargas, 2014) and Marilyn Chase's riveting The Barbary Plague: The Black Death in Victorian San Francisco.

Thus, applying Jew Ho to New York's "Jewish problem," the Empire State may exercise its police powers to protect the public against COVID-19 but cannot single out one group based on religion or race, especially when other non-Jews are infected throughout the city and state. 

Generally, a state must have a compelling reason to deprive us of our fundamental rights — like the rights to assemble and worship — or to impose burdens on "suspect classes" of people — by race, religion, sex, etc.  Any burden on individual rights must be narrowly tailored.

While the Cuomo–de Blasio orders aren't a quarantine per se as in Jew Ho, confining people to home for anything but the most essential, denying them the right to congregate and gather, and closing their schools is effectively...a quarantine.  New York could claim a compelling interest in using quarantines to prevent the spread of COVID-19 and could limit First Amendment freedoms to achieve that goal, but only if narrowly tailored.  Thus, restricting the First Amendment rights of Jews to assemble, worship, and speak, but not those of other affected groups, clearly overreaches and unconstitutionally infringes on First Amendment freedoms and violates Equal Protection guarantees.  To correct this and be narrowly tailored, New York should quarantine only those who are infected and infectious until they test negative and are no longer shedding virus.  That would be a reasonable imposition on our rights; not the disparate treatment we see leveled against New York's Jews.

Why do Jewish gatherings and schools spread the virus in a way that threatens public health, but others don't, like mass BLM, Antifa, and transgender demonstrations, not to mention large crowds taking public transportation, shopping, outdoor markets, religious gatherings by other groups, and other schools?  The Fabulous Il Duce Boys don't understand that a mere increase in cases does not a hot zone make, especially in the absence of details regarding symptoms, hospitalizations, responses to treatment, and recoveries versus deaths.  Nor does it justify liberty-squelching measures against one group when thousands of non-Jewish New Yorkers are also infected.

Cuomo and de Blasio disparaged religious Jews, claiming that their large gatherings exceeded the 50-person outdoor limit and the 50-percent limit for indoors.  Their proof?  A picture of Chasidic Jews from 2006.  They labeled these events "super spreaders" with no evidence.  These two must prove that large gatherings of Orthodox Jews are the proximate cause for spreading COVID-19, resulting in massive casualties.  They must establish that the virus exclusively infects and spreads among Orthodox Jews inhabiting certain ZIP codes.  But they can't.  The science (ahem) doesn't support their fantasies.  Sorry, Guvna, Hizzona.  You lose.

When hysteria takes over and the fortunes of ignorant and bigoted politicians depend on fear, all groups take heed.  Whether Jew Ho or New York's Jews, the creep of totalitarianism doesn't care.  It just wants a victim to scapegoat and a couple of meshuggeneh leaders with the chutzpah to see it through.

Image: Pat Arnow via Flickr.