In a counter brief to the one submitted by New York State in the law suit filed by the Association of Jewish Camp Operators (AJCO), lawyers for AJCO submitted their arguments disputing those offered by New York State.
In response to the claims by AJCO and Jewish parents that the state was infringing and discriminating against their religious rights to have their children in an immersive religious atmosphere, the state suggested they were not discriminating because “the plaintiffs should be content to exercise their religious rights ‘next summer’ or in another, less intensive manner, of defendant’s choosing.” The infringement of the rights of the Jewish camp operators and the parents was only “incidental”, the state wrote in their brief.
Lawyers for the camps pointed out that the state did not suggest that protesters of police brutality and racial justice assemble next summer, or in a more muted fashion, presumably because the state believes such limitations would be significant.
In addition, the state gave no weight whatsoever to the critical nature of the religious experience of Jewish camping, presumably once again because they do not value it and do not wish to accommodate it.
The state carved out exceptions from their COVID restrictions for First Amendment conduct they favor, despite the same or greater risk of the transmission of COVID-19, the brief contended. Similarly, it exempted comparable secular activity, such as day camps, day care facilities and higher education dormitories, allowing them to operate under health guidelines, without affording a similar exemption for Jewish overnight camps. By refusing similarly to exempt overnight camps, it singles out religious activity for discrimination, since at the time of the announcement barring the camps, only Jewish overnight camps were planning to operate.
The brief also mentioned that last Friday, Judge Sharpe found two separate and distinct bases to enjoin the state’s gathering restrictions.
First, they imposed less restrictive limitations to comparable secular activity, and Governor Cuomo’s “de facto exemption” for “mass race protestors . . . sent a clear message that mass protests are deserving of preferential treatment” to religious conduct. Indeed, the state did not attempt to argue that protests are less dangerous than are Jewish overnight camps.
Second, Judge Sharpe concluded that the challenged indoor limitation triggers strict scrutiny because it “applies only to houses of worship.”
In his decision on Friday, Judge Sharpe rejected the state’s contention that there is no irreparable harm where the plaintiffs “are only being required to [exercise their religious rights] in a different way,” writing that the loss free exercise rights of religion is alone adequate to demonstrate irreparable injury here.
The state did not dispute the safety protocols proposed by the overnight camps would curb transmission of COVID-19, and did not give it any weight in their decision to ban the camps for this summer, nor did it explain why the guidelines issued by the State for comparable secular conduct would not work for overnight camps.
With the brief’s and counter briefs filed, a hearing is scheduled for Tuesday, June 30, where the plaintiff (AJCO) and the defendants (Cuomo) will defend their positions before the Hon. Glenn T. Suddaby, Chief Judge of the U.S. District Court for the Northern District of New York, based in Albany.