Permanent Injunction Issued Against New York Restrictions on Houses of Worship

A federal judge on Tuesday granted a permanent injunction against New York Governor Andrew Cuomo’s capacity limits on houses of worship in red and orange zones, capping a four-month legal battle over religious liberties during the COVID-19 pandemic.

“The court grants a permanent injunction against enforcement of [Cuomo’s executive order’s] 25% capacity or maximum of 10-people, and 33% capacity or maximum of 25-people limitations on houses of worship, respectively in red and orange zones,” wrote Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern District of New York. The case was brought by Agudath Israel and several of its shuls in New York City.

In response to rising COVID-19 infection rates in certain parts of the state, Gov. Andrew Cuomo instituted in early October a “Cluster Action Initiative,” categorizing parts of the state into various colored “zones,” based on COVID-test-positivity rates. In the most-restrictive “red” zone, guidelines include limiting services at houses of worship to 10 people or 25 percent of maximum occupancy, whichever is fewer. In the intermediate “orange” zone, maximum attendance at houses of worship is limited to the lesser of 25 people or 33% of occupancy. In the least-restrictive yellow zones, houses of worship are limited to 50% of occupancy.

While houses of worship were subject to these limitations, “essential businesses” were allowed to remain open without occupancy restriction in red zones; in orange zones, all businesses were allowed open except specific high-risk ones like barber shops and salons. Religious groups argued that this disparity was an unconstitutional infringement on freedom of religion.

Multiple Orthodox Jewish and Catholic groups and individuals filed suit against various aspects of the Cluster Action Initiative.

In a landmark ruling last November, the U.S. Supreme Court enjoined Cuomo’s restrictions against 10- and 25-people limits in houses of worship in a case brought by the Brooklyn Catholic Diocese, which oversees nearly 200 churches in Brooklyn and Queens.

The 25%- and 33%-of occupancy limitations were not challenged at the Supreme Court. But in light of the Supreme Court’s ruling, the U.S. Court of Appeals for the Second Circuit ordered the district judge to rule on those percentage-of-occupancy limitations, holding them to the standard of “strict scrutiny” — that they must be narrowly tailored to fulfill a compelling state interest in the least restrictive means possible.

Prior to the preliminary hearing that had been scheduled before Matsumoto on Monday, the state said it would no longer fight to uphold the occupancy limitations, essentially conceding that they couldn’t withstand strict scrutiny. On Tuesday morning, Matsumoto formally issued the permanent injunction.

As the four-month legal clash comes to a close, no parts of the state are in red or orange zones anymore.

The 50%-of-occupancy limitations in yellow zones have not been challenged.

The injunction is available here.

A Cuomo spokesperson did not respond to Hamodia’s request for comment on Tuesday’s injunction.

Agudah attorney Avi Schick said in a statement, “This decision restores the protection of religious practice that is guaranteed by the Free Exercise Clause of the United States Constitution and reminds those in government that religion is not less important than business and entertainment.

“There was no basis to treat shuls and davening more harshly than conduct such as office work and shopping. We are grateful that religious practice has been restored to its rightful place as the most essential of all activities.”

Schick also called on New York City to dismiss all summonses that had been issued to shuls in violations of Cuomo’s order. City Hall did not respond to Hamodia’s request for comment as to whether the fines would be lifted.

Rabbi Chaim Dovid Zwiebel, Executive Vice President of Agudath Israel, said in a statement, “We wish we wouldn’t have had to go to court. But we had no choice, as Agudath Israel vigorously opposes any action which jeopardizes individuals’ first amendment rights to freely exercise religion, or which restricts religious practices differently than other activities. Religious freedom is the bedrock and touchstone on which this nation was founded.

“At the same time, we forcefully reiterate our call for ongoing care and prudence – in all activities – in light of COVID-19.”

Eric Rassbach, vice president and senior counsel at the Becket Fund for Religious Liberty, said in a statement that by declining to fight to uphold the occupancy limitations, “The Governor is desperately trying to avoid testimony showing that his orders shutting down synagogues and churches weren’t based on public health, but on politics … We welcome Governor Cuomo’s surrender, even if it took him way too long to figure out he was acting illegally,”

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rborchardt@hamodia.com

smarcus@hamodia.com