Erev Shabbos saw a happy legal development for all religious communities, in the form of a federal judge’s granting of a preliminary injunction ordering New York State and New York city officials to remove unreasonable, and seemingly unconstitutional, limits on houses of worship.
U.S. District Judge Gary L. Sharpe was responding to a request on June 10 by two Catholic priests and three Orthodox Jewish congregants — Elchanan Perr, Daniel Schonborn and Mayer Mayerfeld — in Brooklyn. They were represented by the Thomas More Society, a not-for-profit, national public interest law firm that defends religious rights.
The petitioners had pointed out that houses of worship were being treated more strictly than other similar gathering places, in apparent violation of the Second Amendment’s prohibition against limiting Americans’ religious expression.
The judge concurred. “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,” he wrote, “that is, until those decisions result in the curtailment of fundamental rights without compelling justification.”
The ruling, putting the special rules governing houses of worship on hold, contended that New York Governor Andrew Cuomo, Attorney General Letitia James, and New York City Mayor Bill de Blasio “exceeded” their executive powers by limiting worship services while condoning mass “Black Lives Matter” protests during the current health crisis.&
The federal order noted that Mayor de Blasio had sent “simultaneous pro-protest/anti-religious gathering messages” by “actively encourag[ing] participation in protests and openly discourag[ing] religious gatherings and threaten[ing] religious worshipers.”
Treating protests and worship services unequally, the judge wrote, “sent a clear message that mass protests are deserving of preferential treatment.”
As a result, the judge ordered that the current rules on houses of worship, which in Phase 2 areas — like New York City, currently — limits indoor attendance to 25% of capacity, be changed to 50% of capacity, equal to the limits on allowed businesses. The judge also barred all restrictions on outdoor gatherings. In both cases, proper social distancing must still be followed.
Amid the citations in the lawsuit that the judge reviewed before issuing his order was the fact that Mr. de Blasio personally ignored social distancing and the 10-person limit when he attended and addressed a mass political gathering at New York City’s Cadman Plaza while not wearing a facemask. The suit also noted that, mere days later, in Williamsburg, Chassidic Jewish children were evicted from a park by a police officer enforcing the governor and mayor’s 10-person limit on “non-essential gatherings.”
We keenly remember, of course, how the mayor threatened the Jewish community with arrests and prosecutions for “illegal” mass religious gatherings after police in Williamsburg broke up the funeral of a beloved Rebbe.
At a press conference in early June, Governor Cuomo was asked if he would recommend that people not go out and protest, and responded: “No, I think you can protest, but do it smartly and intelligently.”&
Needless to say, one can worship smartly and intelligently as well.
Similarly, in an interview with Hamodia several weeks ago, Mayor de Blasio defended his executive order placing limits on religious services but not on protests by unabashedly prioritizing the reaction to an “extraordinary crisis seeded in 400 years of American racism” over “the understandably aggrieved store owner or the devout religious person who wants to go back to services.”
But the U.S. Constitution affords the aggrieved store owner and, in particular, the devout religious person, no less consideration than the most sincere social reformer.
The U.S. Department of Justice welcomed the injunction. Assistant Attorney General Eric Dreiband of the Department’s Civil Rights Division issued a statement saying, in part, that Friday’s decision “is a win for religious freedom and the civil liberties of New Yorkers. Government cannot discriminate by protecting free speech and the right to assemble while threatening or limiting religious exercise— it must protect all rights guaranteed under the First Amendment.”
We concur, and our eyes are now on another hoped-for temporary injunction, the one sought by Agudath Israel and the Association of Jewish Camp Operators against the state’s ban on sleepaway camps this summer.
It is set to be heard tomorrow by Judge Glenn Suddaby.
The camp case is not perfectly analogous to that of houses of worship. But our hope is that the judge will come to understand and appreciate the validity of the plaintiffs’ contention that Jewish overnight camps provide more than mere summer activities, that they are part and parcel of the religious development of tens of thousands of children.
And that he will issue an order reflecting that reality.&