A group of Catholics and Orthodox Jews filed suit Thursday against New York’s recent COVID-19 restrictions, alleging unconstitutional infringements on freedom of speech, religion and assembly. This is at least the fifth lawsuit brought against the regulations imposed last week.
The federal suit was brought by a group of Catholic priests, Orthodox Jews, and Catholic-school and yeshiva parents, over Gov. Andrew Cuomo’s closure of schools and limitation of houses or worship to as few as 10 people, in various areas of the state that are seeing a COVID uptick, split into “red,” “orange” and “yellow” zones based on level of infection or risk of spread.
Thursday’s filing is an updated version of a suit brought in June by attorneys Christopher Ferrara and Michael McHale of the Thomas More Society, a public-interest law firm focusing on religious liberties, against New York State guidelines restricting houses of worship to 25% of maximum occupancy. In that case, Soos v. Cuomo, Judge Gary Sharpe of the Albany-based Northern District of New York granted a preliminary injunction mandating that houses of worship be allowed to have indoor services at 50% of occupancy indoors and outdoors of limited size, in line with what was being permitted businesses and Black Lives Matter protestors at the time. The updated filing asks Sharpe to also enjoin enforcement of the new restrictions.
The new filing lists a host of state and city officials as defendants, including Cuomo, State attorney General Letitia James, New York City Mayor Bill de Blasio, and the state and city health commissioners. (While the state enacts all closure laws, enforcement is mostly up to the cities).
“Seven months into the era of COVID-19, and nearly four months after this Court’s entry of a preliminary injunction protecting the original plaintiffs’ right to religious worship, New York officials simply couldn’t contain themselves,” the suit says. “Instead of respecting plaintiffs’ First Amendment rights and this Court’s crystal-clear injunction entered on June 26, 2020 … the State and City defendants, led by defendant Cuomo and defendant de Blasio, have suddenly done an about face. Less than one month before a Presidential Election and only hours after Cuomo promised Orthodox Jewish communities in Brooklyn that their houses of worship could remain at 50% of capacity — as this Court’s June 26 injunction requires — Cuomo last week imposed a new, draconian crackdown on religious worship and education throughout much of New York City and surrounding counties.”
The new restrictions, which also shutter “non-essential” businesses in the red zones, come after portions of the state, including sections with large Orthodox Jewish populations such as in Brooklyn, Queens, Rockland County and Orange County, have been seeing a COVID uptick in recent weeks.
Cuomo has frequently blamed religious gatherings, often particularly naming “ultra-Orthodox” Jews, for the rise in cases. At his press Oct. 6 press conference announcing the new restrictions, the governor said, “The new rules are most impactful on houses of worship, because the virus is not coming from non-essential businesses. That’s not what this is about. It may be spread by non-essential businesses. The virus is not starting in schools. It may be spread by schools. This is about mass gatherings. One of the prime places of mass gatherings are houses of worship. I understand it’s a sensitive topic, but that is the truth. Period. You want to solve the problem? Acknowledge the problem.” At a press conference Oct. 14, Cuomo said that “the enforcement from the local governments is very uneven, especially when its politically sensitive,” and “that’s what we’re running into with a lot of these ultra-Orthodox communities, who are very politically powerful – don’t kid yourself.”
But the plaintiffs argue that “At no time has Cuomo presented evidence that New York religious gatherings have been a source of viral spreading as opposed to all the other gatherings his one-man rule has permitted for the past seven months,” and that the restrictions particularly target religious practices, as they severely restrict houses of worship while permitting “essential businesses” to remain open without limits on rates of occupancy, which “endangers the government’s interest in ‘containing the virus’ at least as much as religious schools or houses of worship.”
When limiting constitutional freedoms to achieve a compelling state interest (such as curbing the spread of a disease), governments are required to narrowly tailor the restrictions so they are the least-restrictive possible. But the lawsuit says these COVID restrictions are overborad, and cites as evidence comments Cuomo made to Jewish leaders in a conference call hours before he imposed the guidelines, a full recording of which was obtained and published exclusively by Hamodia.com.
In response to a question posed on the call by Harav Yaakov Bender, Rosh Hayeshivah of Yeshiva Darchei Torah in Far Rockaway, about why schools 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. I didn’t propose this, you know; it was proposed by the Mayor [Bill de Blasio] in the City. I’m trying to sharpen it and make it better. But 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 in the zip codes, the anxiety comes down, and then we can have a smarter, more-tailored approach.”
Cuomo’s office did not immediately respond Thursday evening night to Hamodia’s request for comment on this latest suit. There have been at least four other suits filed against the restrictions, including one Wednesday evening by three Rockland County shuls. In response to previous suits, Cuomo senior advisor Rich Azzopardi said last week, “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 Friday, October 16, 2020 at 3:49 am .