Two shuls in Rockland County have filed a lawsuit against New York Gov. Andrew Cuomo’s restrictions on houses of worship due to a COVID-19 uptick, alleging an unconstitutional violation of religious and other liberties.
On Tuesday, October 6, Cuomo announced restrictions on various areas of the state – including Rockland County – divided into “red,” “orange” and “yellow” zones based on outbreak level and proximity thereof. In the most restrictive “red” zones, schools and nonessential businesses are shuttered for two weeks, and houses of worship are restricted to 10 worshipers or 25 percent of occupancy, whichever is fewer.
But a federal lawsuit filed Wednesday evening in the Southern District of New York argues that the restrictions don’t meet the constitutional requirement that they be narrowly tailored and the least-restrictive possible to achieving the state interest of reducing the spread of COVID-19.
The suit was filed by attorneys Ronald Coleman and Harmeet Dhillon, on behalf of Cong. Yesheos Yaakov and Rabbi Moshe Rosner, and Cong. Netzach Yisroel Rabbi Chaim Leibish Rottenberg. Both shuls are in Monsey, the former in a red zone and the latter in a yellow zone.
The lawsuit cites as evidence a conference call Cuomo held with Jewish leaders on the morning of Oct. 6, the full recording of which was released exclusively on Hamodia.com.
In response to a question posed on the call by Rabbi Yaakov Bender, Rosh Hayeshivah of Yeshiva Darchei Torah in Far Rockaway, about why schools in red zones must be shuttered completely, rather than taking a more nuanced approach, Cuomo responded, “I’m a hundred percent frank and candid. This is not a highly nuanced, sophisticated response. This is a fear-driven response, you know. This is not a policy being written by a scalpel; this is a policy being cut by a hatchet. It’s just very blunt … it’s out of fear. People see the numbers going up – ‘Close everything! Close everything!’ It’s not the best way to do it, but it is a fear-driven response. The virus scares people. Hopefully we get the numbers down … the anxiety comes down, and then we can have a smarter, more-tailored approach.”
The suit argues that the restrictions “cannot meet the no-less-restrictive-alternative test.”
“The CDC’s social distancing guidelines are appropriate to limit the spread of COVID-19. Imposing more restrictive requirements that target Houses of Worship, while at the same time allowing secular gathering in secular businesses and institutions, is not the least restrictive means of achieving defendants’ public safety goals.”
In an updated filing Tuesday, Oct. 19, the plaintiffs cite declarations made by New York State Health Commissioner Dr. Howard Zucker, in another lawsuit against the restrictions brought by the Roman Catholic Diocese of Brooklyn, to argue that there is no rational basis for the restrictions, they don’t pass the “strict scrutiny” legally required for suspension of constitutional rights, and that the “effect of” Cuomo’s executive order “is blatantly anti-Semitic, creating religious-observance based color coded ‘hot-spot’ zones directed towards particular Jewish communities.”
Zucker had said, “When we are mapping the positive cases and creating the zones, we are not looking at the businesses or entities located within those zones, only the number and grouping of positive cases. We look solely at the data and do not take into account who or what are located in that zone – whether it is a non-essential business, school, yeshiva, church, synagogue, or a car dealership – as they all face restrictions, if justified by the scientific data, whether or not that particular school, car dealership, or religious group has positive cases within it. The data drives the zone.”
The Rockland plaintiffs argue that such mapping techniques are an unconstitutional violation of religious liberty, because while a shul may be a in a red zone because there is a high number of COVID cases in surrounding homes, congregants who live in others zones are still restricted from worshiping there.
The suit also argues that “Covid-19 is simply not a serious health threat,” as “fewer than 30 people are currently hospitalized hospital because of Covid-19.”
“When Governor Cuomo described this policy as one being shaped, not by a scalpel, but a hatchet, he was being generous,” the suit says. “It is shaped by a bludgeon and it is aimed at plaintiffs’ constitutional rights.”
The suit alleges violations of the First Amendment’s Free Exercise, Establishment, Free Speech and Freedom of Assembly Clauses; the Due Process Clauses of the Fifth and Fourteenth Amendments; and the Fourteenth Amendment’s Equal Protection Clause. The plaintiffs are seeking injunctions prohibiting Cuomo from enacting the restrictions on houses of worship.
Rabbi Rottenberg, one of the plaintiffs, was invited by Cuomo to deliver the invocation before the governor’s State of the State address in early January, days after several people were stabbed by a machete-wielding man at the rav’s home during a Chanukah celebration. One victim, Reb Yehosef Neumann, Hy”d, passed away after being in a coma for three months.
This was the fourth suit to be filed by opponents of the recent COVID restrictions.
Judges in the Eastern District of New York denied separate requests on Oct. 9 by Agudath Israel and the Brooklyn Roman Catholic Diocese for temporary restraining orders against implementation of the limit on houses of worship. The Diocese subsequent request for a preliminary injunction was also denied.
In response to a request for comment from Hamodia on how Cuomo’s “hatchet”comments are consistent with the “narrowly tailored” requirement, Cuomo spokesperson Jack Sterne said, “This quote is being taken wildly out of context – the Governor was responding to a question about the zip code-based shutdowns that had been proposed, not the state’s Cluster Action Initiative. We have used science and data to narrow the focus of these restrictions from entire zip codes to specific geographic areas where clusters of cases are actually present and have tailored the activities restricted to those science shows are vectors for spread. The state has an important interest in protecting public health and safety and has taken extraordinary steps to ensure our actions are legal.”
In response to the lawsuits, Cuomo senior advisor Rich Azzopardi has said, “We’ve been sued virtually every day for every action taken. We’re concentrating on reducing the virus in these hot spots and saving lives, period.”
The full lawsuit is available here
Updated Monday, October 19, 2020 at 9:02 pm .