2nd Circuit Court Takes On 'Essential' Discrimination

After practically a year of this, the courts are finally tackling some of the basic lockdown questions.

One of the most basic of these is the entire premise that some businesses are essential while other businesses are non-essential. And that these decisions about which business is essential and which business is non-essential can be made by political leaders.

is from a 2nd Circuit Court ruling on religious freedom in New York brought by Agudah, an Orthodox Jewish group. It's a good ruling, but what jumped out at me was the entire essential question.

“The Court also found that Governor Cuomo’s Order was not generally applicable: the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. That lack of general applicability is also subject to strict scrutiny.”

That has been a basic issue since day one.

The essential category claims to be a response to an emergency, but its applications have a good deal to do with political decisions, rather than with any kind of real essential services. a basic case in point is defining not only the news media as essential, but in California defining the film industry as essential.


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