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Diners at Janssen’s Market in Wilmington, Del., ate lunch in front of a cutout of Biden.

Did Gov. Andrew Cuomo’s October executive order restricting the size of gatherings in New York — including gatherings in houses of worship — violate the Constitution? Last week, the Supreme Court decided that yes, it most likely did.

The court temporarily invalidated Cuomo’s executive order, pending a decision by a lower court. The Times columnist Bret Stephens wrote in his appreciation of Justice Neil Gorsuch’s concurrence that “the right to the free exercise of religion, even if subject to regulation, deserves greater deference than the right to attend your local cineplex,” and that Cuomo’s rules hadn’t been evenly applied.

In an Op-Ed article in October, Douglas Laycock, a law professor at the University of Virginia, argued that Cuomo would have a hard time trying to defend the unequal application of “essential” in allowing or disallowing certain gatherings, as he would “struggle to rationalize the unequal treatment of schools, restaurants and houses of worship.” Gatherings can be regulated, especially for the protection of human life, but to stand up before the court, “the rules must really be nondiscriminatory,” Laycock wrote.

In the majority opinion last week, the Supreme Court noted that under Cuomo’s most restrictive order, “a synagogue or church may not admit more than 10 persons,” but that “businesses categorized as ‘essential’ may admit as many people as they wish.”

The unsigned opinion added: “The list of ‘essential’ businesses includes things such as acupuncture facilities, campgrounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.”

Michael McConnell and Max Raskin, two law professors, wrote in an Op-Ed article this week, “When public health measures intrude on civil liberties — not just religious exercise, but other constitutional rights — judges will insist that the measures be nonarbitrary, nondiscriminatory and no more restrictive than the facts and evidence demand.” In McConnell and Raskin’s view, the arbitrariness of Cuomo’s rules is bound to be a problem when the lower court takes up this case.

— Adam Rubenstein

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