Supreme Fizzle for Cuomo’s Microcluster Bomb

Late Wednesday night last week, the U.S. Supreme Court issued an injunction overturning New York State’s strict limitations on houses of worship, following lawsuits filed by Agudath Israel and several of its shuls, and the Brooklyn Catholic Diocese.

For religious communities in New York, the ruling, handed down minutes before midnight on Thanksgiving Eve, appeared to be the culmination of battles that had been fought since New York political leaders placed strict limits on attendance at houses of worship last spring, and which ramped up with the enactment of Gov. Andrew Cuomo’s Cluster Action Initiative on October 6.

The day after the ruling was handed down, Hamodia spoke with Agudah attorney Avi Schick, a partner in the Troutman Pepper law firm, about the legal battle and the implication of the Supreme Court’s ruling on religious liberties during the COVID pandemic and beyond.

How much sleep did you get last night?

As much as I needed, after terrific news like that.

When did you get news of the ruling? I believe it came down just before midnight.

I got an email from the United States Supreme Court at 11:47 p.m. And, baruch Hashem, it contained the ruling we had been hoping for: an injunction against Governor Cuomo’s limitations on attendance at houses of worship.

What was your reaction, getting news of the ruling at that time of night?

I was pretty sure at that point that we weren’t going to get it until after the Thanksgiving weekend. So it came as a total surprise given the late hour — and the surprise quickly gave way to elation at the result.

You had actually told me the previous week that you expected a ruling sometime before the end of the day Wednesday. I guess that’s exactly what you got.

Yeah, but I wasn’t expecting it that late Wednesday!

Let’s talk about the ruling. There had been two prior COVID rulings at the Supreme Court, where the Court had declined to issue injunctions overturning limitations on houses of worship. Then, in this case, the Court did overturn it. Some legal observers believe this is not just one case, but an indication that the Court will be going in a different direction now in houses-of-worship cases.

Absolutely. There are several very important aspects of this decision that are going to impact conduct by both Governors and judges across all 50 states. First, as you mentioned, there were prior decisions: one in a California case called South Bay, at the end of May, and another called Calvary Chapel from Nevada in July. In South Bay, Chief Justice Roberts issued a short concurrence to the denial of the injunction saying that they did not meet the high standards for an emergency injunction and citing a 1905 case about deference to the states in times of a public-health crisis. Somehow, this short concurrence saying that this particular plaintiff did not meet the standards for extraordinary relief at this time was used to justify restrictions on religious expression across the country. It was cited by more than 100 courts and relied upon to reject challenges to restrictions on religious practice. That, in turn, emboldened Governors to impose harsh restrictions because they thought courts would defer to them.

That is now no longer the case. So I think that one of the really important consequences of last night’s decision is that it reset the field entirely. That doesn’t mean that religion is going to win in every case. But until last night Free Exercise challenges to COVID restrictions were consistently rejected because of the South Bay decision. And now that’s been wiped off the books.

South Bay was not explicitly overturned.

It will no longer be cited or relied upon. It is significant to note that in our case, Chief Justice Roberts agreed, in a solo dissent, that the limits imposed by Governor Cuomo were constitutionally suspect. He did not want to grant the injunction because he felt that the Court could stay out of the fray in light of the Governor’s redesignation of the orange zones to yellow a few days ago. But the Chief Justice wrote that “Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the free Exercise Clause.” So even Chief Justice Roberts walked back South Bay, and certainly, five other justices entirely ignored it.

Let’s get into that mootness issue: When the cases were filed by Agudah and the Brooklyn Diocese, some of the Agudah shuls and Diocese churches were red or orange zones. Currently, no parts of Brooklyn or Queens — where the plaintiffs’ houses of worship are located — are in red or orange zones, although the entire New York City is under threat that it might go to orange any day now. Talk about this issue of whether it was appropriate for the Court to grant an injunction considering that right now, none of the plaintiffs are in a red or orange zone, and the plaintiffs are not challenging the yellow-zone restriction, which limits houses of worship to 50% of occupancy.

It surely was appropriate for the Court to issue this ruling.

A few days ago — in a desperate attempt, really, to avoid Supreme Court scrutiny — the state announced, pretty much after the case was submitted, that the Brooklyn orange zone has been downgraded to yellow. At the same time, the Governor said he retains his sole authority, based on the reasoning that he comes up with on any day, to impose new restrictions, to put people back into different zones.

We argued very strenuously to the Court that this was just a tactic by the state to avoid the Court’s review and that they should not reward the Governor’s gamesmanship. Worship can’t be like a yo-yo — you’re in and out of a restricted zone based on the whims of the Governor. And the fundamental question remains the same: is it constitutional to have 10- and 25-person limits on worship? In fact, and Justice Kavanaugh mentioned this in his solo concurrence, the Governor’s gambit made it a perfect time to issue this ruling because the state can’t claim that the ruling will lead to health problems because right now we’re not in the zone with those restrictions. So, let’s just decide this now, because the issue is surely going to come back.

So the state’s ploy to avoid Supreme Court scrutiny seems to have backfired.

Within minutes of the downgrade, the state sent a letter to the Supreme Court suggesting it no longer had to consider our application. This probably made it seem that it was part of a strategy to avoid Supreme Court review. Anything that suggests that there is a political calculus to the designations of zones ultimately undermines the state’s argument that everything is driven by objective metrics, science and data.

As for the practical effect of the ruling: The red zone had limited houses of worship to 10 people or 25% of occupancy, whichever is fewer. The orange zone limited houses of worship to 25 people or 33% occupancy, whichever is fewer. The Court struck down the 10- or 25-person limit, but left in place the 25% of occupancy in the red zone, and the 33% of occupancy in the orange zone. Were you challenging that also or were you only challenging the person limit?

We were challenging the 10- and 25-person limits.

So you’re perfectly happy sticking to the 25% and 33% of occupancy?

Right now, 50% of occupancy is permitted [because the plaintiffs’ houses of worship are in a yellow zone].

Ultimately, the important part of the Supreme Court’s decision is the doctrinal impact, in which the Court rejected what’s been going on in 50 states, where elected officials and unelected bureaucrats sit and decide what is essential and what isn’t essential. What the Court said quite emphatically last night is that religion is essential — not because any bureaucrat or any elected official in any state includes it in a list of what’s essential, but because the United States Constitution makes it so. That’s an incredibly important point, and that’s going to have an impact across 50 states, through the COVID pandemic and far beyond.

The state argued — and Justices Sotomayor and Kagan agreed — that the appropriate analogy to houses of worship are not the liquor stores and bike-repair shops, which were allowed to be open; rather, it’s the theaters, concert halls and sports arenas, which have large groups of people congregating and singing for long periods of time — and those are completely closed. According to Sotomayor and Kagan, houses of worship are actually being treated more favorably than comparable venues. What’s your answer to that argument?

The Constitution says religion is essential. A state can’t decide that worship is like going to a theater or ballgame, and that as long as one is being restricted so can the other. It’s not whether any other conduct is restricted, it is whether any other activity is permitted. Given the long list of businesses, conduct and activities that are permitted in these zones, there is no justification to so severely restrict religious expression. You can impose safety restrictions on houses of worship — distancing, masking, hand sanitizing, etc. — but the state doesn’t get to choose to restrict religion because some state official believes that fish stores, pet stores and liquor stores are more essential than worship. That’s the import of the Court’s decision: the Constitution says religion is essential.

One of the major complaints by the religious groups has been that the same limit of 10 or 25 people applies regardless of how large the house of worship is. Your client, Agudath Israel, often lobbies the state on religious-liberty issues. I don’t know if you were involved in that at all, or if you’re familiar with those discussions, but what was the state’s answer during these lobbying sessions as to why a shul that has a maximum occupancy of 400 has to limit worship services to 10?

There was no answer.

Reuvain, as you’re aware as well or better than almost anybody else in New York State, the rules that the Governor announced on October 6 followed a phone call the Governor had with Jewish leaders in which he didn’t discuss these rules at all — he only talked about limiting shuls to 50% of occupancy — and then, hours later, without any warning, heads-up or follow-up, he announced these rules, with much stricter limitations on houses of worship than the 50% of occupancy that he had told Jewish leaders he would be imposing. [Ed’s Note: A recording of this phone call with Jewish leaders was obtained by this reporter and posted exclusively to Hamodia.com.]

So it was obvious that whatever was going on, it wasn’t going to be resolved by phone calls or emails with the Governor’s staff. Of course, those calls were made and emails were sent, but something had triggered the decision by the Governor to go in this direction, to impose these restrictions, and so we were going to be stuck. Therefore, within two hours of the Governor’s press conference, we were already working on our complaint, because we understood that we weren’t going to get the kind of respect and relief that we deserved through dialogue alone.

You had argued that the case is not merely one of restricting religion, but that Cuomo specifically targeted Orthodox Jews.

And the Supreme Court agreed. Look at the beginning of the opinion. It says: “Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerrymandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included …The applicants have made a strong showing that the challenged restrictions violate “the minimum requirement of neutrality” to religion … statements made in connection with the challenged rules can be viewed as targeting the “‘ultra-Orthodox [Jewish] community.’”

To be clear, this is not about animus — it is about targeting. The state simply can’t just say these restrictions are meant to impact the Orthodox Jewish community, that it is meant to change its behavior. The state can enforce whatever existing rules there are. But this singled out the Orthodox community — frankly, the statements made us out to be perpetrators of this virus rather than victims of it. That’s a very damaging characterization of things, and, really, it’s been applied to no one else in the state.

The Governor had accused the Orthodox community of not following health guidelines, and your argument was that even if some community members are not following the law, he cannot then target the entire community. And your plaintiff shuls say they have followed the rules completely.

And the state never contended otherwise. As we argued to the Supreme Court, there can’t be guilt by religious association.

To be clear, we did not argue, and the Supreme Court certainly did not say, that the pandemic isn’t dangerous, that public-health concerns aren’t real, that masking is not effective or that social distancing should not be practiced. What it said, simply, was that you can’t impose a 10-person limit on a house of worship that can safely seat hundreds.

If, in the weeks before the announcement of the Cluster Action Initiative on October 6, there was a rise in COVID cases in the Orthodox Jewish community, is it inappropriate for the restrictions to target that community?

You can’t target the Jewish community. Mayor de Blasio first suggested imposing restrictions on specific zip codes. At least zip codes are geographic boundaries. The Governor said he was not using zip codes, which are a typical way of thinking about things, but literally tying together disparate frum neighborhoods into single restricted zones.

If you’re driven by data and science and the numbers, you can talk about addressing neighborhoods. But the state was very candidly addressing communities. A neighborhood is defined by geographic boundaries of some sort; a community is defined by the people who live there. They were very candidly addressing the Orthodox Jewish community, not just neighborhoods where Orthodox Jews happen to live.

Since the South Bay and Calvary Chapel rulings, Justice Ginsburg died and was replaced by Justice Barrett. That was the difference between a 5-4 ruling against houses of worship in those two cases, and a 5-4 ruling in favor of houses of worship in your case. Do you believe that going forward, Barrett will be more favorable to religious liberties than Ginsburg was?

Surely, everybody who cares about religious liberty was pleased and encouraged by last night’s decision, which comes just weeks after Justice Barrett was appointed to the Court. A very wise man once said, in response to a question about what is the most important skill for a constitutional lawyer to possess, “You have to know how to count to five.” So it’s important to get that. But as I said earlier, in last night’s decision Justice Roberts did come off his doctrinal position in South Bay, and he did acknowledge the unconstitutional nature of Governor Cuomo’s restrictions.

Do you feel that Roberts regrets his South Bay decision and is trying to walk it back, or believes it’s been misapplied by lower court judges?

I don’t think he meant South Bay to relieve district courts of their duty to look at the facts and the law. And it wasn’t meant to give Governors carte blanche to do whatever they want to restrict religion. So in that regard, I think it was certainly stretched beyond its original intention.

Prior to last night’s Supreme Court ruling, the lawsuits against Cuomo’s restrictions on religious institutions — by Agudah, the Diocese and other organizations — had resulted in one loss after another for the religious institutions. They did not get a single injunction before last night. Were you surprised at your own victory?

When we set out to craft this case, right after the Governor announced his executive order on October 6 — the second day of Chol Hamoed Sukkos — we understood the challenges. We understood that it was going to be extraordinarily hard to prevail in the district court, because it would be difficult to find a judge who would not simply defer to the Governor. We understood we would then have to file an emergency appeal to the Second Circuit, and we understood that that itself would be difficult because of the South Bay decision. But we were hopeful to get at least one judge in dissent, which would then demonstrate the seriousness of our case, and the diversity of legitimate views on this.

So I can tell you that from the earliest moments we understood that our path to success was likely going to be via the Supreme Court. It’s obviously incredibly gratifying to go from a Governor’s press conference on October 6 to a U.S. Supreme Court victory on November 25, but it was always understood that that was the path we’d have to travel on in order to ultimately prevail.

The Supreme Court’s ruling last night grants an injunction pending appeal to the Second Circuit. The case itself will be heard in the Second Circuit in mid-December, but even if you lost in the Second Circuit, this injunction would apply pending an appeal to the Supreme Court.

Correct. It didn’t quite use those words, but that’s the impact of what it said, yes.

So, in effect, if the Second Circuit rules in our favor, then the case ends [because the state is unlikely to appeal to the same Supreme Court which just ruled against it]. And if the Second Circuit were to ignore last night’s Supreme Court opinion and rule against us, it would have no practical impact, because we’ll be right back to the Supreme Court with an injunction in place until the Supreme Court decides that.

You daven in Agudath Israel of Madison, which is one of the plaintiffs, along with its Rav, Harav Yisroel Reisman. I understand that Rav Reisman wasn’t merely a named plaintiff, but was a strong advocate for the litigation.

In these communal issues, it’s always important to have the perspective of talmidei chachamim with great breadth and great vision about how conduct will impact Klal Yisrael. Rav Reisman, as well as Rav Elya Brudny, played that role here, and in so many other matters. Their guidance and wisdom were extraordinarily impactful in achieving the success that we did.

Any final thoughts?

The only thing that was missing from this experience was my ability to share it with my father, a”h [Dr. Marvin Schick, z”l, who passed away just after Pesach]. He was the visionary and pioneer of legal and policy advocacy in the frum community, and he would have taken tremendous pride in seeing the frum community stand up for its rights. However effective the papers we drafted were, I am sure that my father’s advocacy as a meilitz yosher as we fought this battle played an even larger role.

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rborchardt@hamodia.com