Judge Overturns New York Limits on Religious Gatherings
A federal judge in Albany has issued a preliminary injunction overturning New York state’s limitations on religious gatherings during the coronavirus pandemic, as an impermissible restriction on religious freedom considering the government’s allowing large Black Lives Matter protests and certain business openings at the same time.
Judge Gary Sharpe ruled Friday that New York state and city may not enforce any indoor religious gathering limitations “greater than imposed for Phase 2 industries,” which is at 50% of maximum occupancy, or any limitation on religious outdoor gatherings, provided that participants follow social distancing requirements.
Executive orders by New York Gov. Andrew Cuomo, which New York City Mayor Bill de Blasio incorporated into his own executive orders and enforces in the city, currently limit gatherings at houses of worship in regions that have entered Phase 2 of reopening (including New York City) at 25% of the indoor capacity (while permitting drive-in and parking lot services.) Outdoor gatherings are officially limited to ten people. For those regions in Phase 3, all gatherings are allowed up to 25 people.
But since the end of May, large Black Lives Matter protests have been held across the state, with the full approval of Gov. Andrew Cuomo and Mayor Bill de Blasio.
At a press conference in early June, Cuomo was asked if he would recommend that people not go out and protest, Cuomo answered, “No, I think you can protest, but do it smartly and intelligently.” Cuomo later said, “I want to thank the protestors … I stand with the protestors on the point that we need meaningful reform.”
At his own press conference in early June , when de Blasio was asked by a Hamodia reporter why he was allowing the protests despite not allowing religious gatherings or retail-store openings, the mayor replied, “When you see a nation, an entire nation, simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism, I’m sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services.”
On June 10, two Catholic priests from Upstate New York and three Orthodox Jews from Brooklyn filed a lawsuit brought by the Thomas More Society public-interest law firm, arguing that the restrictions on religious gatherings while the protests were allowed are an unconstitutional violation of the free exercise of religion.
Judge Sharpe agreed.
Citing these comments by Cuomo and de Blasio in support of the protests, as well as de Blasio’s sharp words against a Jewish funeral held in April, the judge wrote, “Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules. They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment.”
Moreover, Sharpe said, nonessential businesses that were permitted to open at 50% capacity in Phase 2, are not “justifiably different than houses of worship,” which had been capped at 25% capacity.
Sharpe also noted that beginning Friday, outdoor graduation ceremonies up to 150 people are permitted in the state. “This is an express exemption from the ten- or twenty-five-person outdoor limits that apply across Phases 1, 2, and 3, and the State must extend a similar exemption to plaintiffs absent a compelling reason to the contrary,” Sharpe wrote. “And there is nothing materially different about a graduation ceremony and a religious gathering such that defendants’ justifications for a difference in treatment can be found compelling.”
The judge acknowledged that elected officials have had to make difficult decisions during the coronavirus pandemic, but said Cuomo and de Blasio had gone too far in curtailing a constitutionally protected freedom.
“Having carefully reviewed the relevant issues, and with a firm understanding that the executive branch response to the pandemic has presented issues with a degree of complexity that is unrivaled in recent history, it is plain to this court that the broad limits of that executive latitude have been exceeded,” Sharpe wrote. “It is not the judiciary’s role to second guess the likes of Governor Cuomo or Mayor de Blasio when it comes to decisions they make in such troubling times, that is, until those decisions result in the curtailment of fundamental rights without compelling justification.”
Practically speaking, the judge’s ruling allows all houses of worship in the state to be open at 50% capacity, and permits all outdoor religious gatherings, provided that social-distancing requirements are adhered to.
Spokespersons for Cuomo and de Blasio said the administrations are reviewing the decision.
The ruling was hailed by religious-liberties advocates.
Lead counsel Christopher Ferrara said the plaintiffs are “pleased that Judge Sharpe was able to see through the sham of Governor Cuomo’s ‘Social Distancing Protocol’ which went right out the window as soon as he and Mayor de Blasio saw a mass protest movement they favored taking to the streets by the thousands.” Ferrara called the ruling “an important step toward inhibiting the suddenly emerging trend of exercising absolute monarchy on pretext of public health. What this kind of regime really meant in practice is freedom for me, but not for thee.”
Mordechai Avigdor, an attorney who consulted on the case, said the decision “has huge ramifications for religious rights and protection here in New York State, and perhaps throughout the country.”
“Our prayers have been answered.”
Another major religious-liberties case is will be decided soon as well, as Judge Glenn Suddaby, also in Albany, is set to hear on Tuesay a lawsuit brought by Agudath Israel and the Association of Jewish Camp Operators, seeking an injunction against the state’s ban on sleepaway camps this summer.
“Governmental power has … been used as a sword against religion, instead of the shield the Founding Fathers intended it to be,” Agudath Israel said in a statement following Friday’s ruling. “With this victory in hand, Agudath Israel intends to press forward to protect religious rights such as religious education and religious summer camps.”
Sharpe was to be the judge in the camp case as well, but earlier this week not to hear the camp case, and it was re-assigned to Suddaby. Both Sharpe and Suddaby were appointed by President George W. Bush.