BROOKLYN (CN) — With the governor’s blessing, a Brooklyn federal judge ordered a permanent injunction Tuesday to end New York's Covid-19 pandemic-related capacity limits for Orthodox Jewish synagogues.
Signed by U.S. District Judge Kiyo Matsumoto, the 5-page order cites assurances from New York Governor Andrew Cuomo’s lawyers that houses of worship will be removed from Cuomo’s executive order by the end of February.
Cuomo’s attendance caps triggered separate complaints from Agudath Israel of America and affiliated synagogues as well as the Roman Catholic Diocese of Brooklyn.
Though Matsumoto had previously declined to enjoin the rules, the Supreme Court blocked New York from enforcing its restrictions, and the Second Circuit later sided with the Catholic and Orthodox Jewish challengers who said capacity limits prevent worshippers from fulfilling religious obligations.
Matsumoto noted that Tuesday’s order, which concerns the Agudath case, came in light of those higher courts “specifically finding that ‘both the fixed capacity and percentage capacity limits on houses of worship’ in the red and orange zones ‘are subject to strict scrutiny.’”
Cuomo agreed to the injunction against enforcing the capacity limits, “and has not presented additional evidence to supplement what was submitted in opposition to the Plaintiffs’ motion for a temporary restraining order and preliminary injunction.”
“Subsequently,” the order continues, Cuomo’s attorneys have represented in status conferences that before the end of February 2021, the executive order “will be amended to remove houses of worship.”
Under Cuomo’s “cluster action initiative,” an executive order to slow the spread of Covid-19, synagogues and other religious centers in so-called red and orange zones were subject to attendance caps that limited head counts to 25% and 33% capacity, respectively.
Agudath Israel of America, an Orthodox Jewish advocacy organization, filed its complaint in the Eastern District of New York on Oct. 8, the eve of three Jewish holidays beginning on the same day Cuomo’s order would take effect, “depriving Plaintiffs and their congregants of the critical religious worship and practices associated with these upcoming holidays.”
The Supreme Court agreed in November with an unsigned 5-4 ruling that said Cuomo’s rules “single out houses of worship for especially harsh treatment.”
“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the opinion says. “But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Cuomo at the time called the ruling “irrelevant from any practical impact,” since the restrictions by then had been removed — worship centers in both groups had been redesignated as yellow zones, with fewer restrictions. For the justices, however, they called it “clear that this matter is not moot.”
The religious groups “remain under a constant threat that the area in question will be reclassified as red or orange,” the justices wrote.
Cuomo also pointed out that, months before the high court ruling blocking his orders, and while Justice Ruth Bader Ginsburg was still on the court, the justices divided 5-4 in the opposite direction, keeping in place church capacity rules in California and Nevada.
“Why rule on a case that is moot and come up with a different decision than you did several months ago on the same issue?” Cuomo asked during a November conference call with reporters. “You have a different court. And I think that was the statement that the court was making.”
Noting Cuomo’s agreement to the latest district court decision, Eric Rassbach, vice president and senior counsel at the nonprofit Becket Fund for Religious Liberty, said the order “is good news for the synagogues, churches, and other houses of worship of New York.”
“It’s not every day you see a governor beg a federal district court, ‘Stop me before I discriminate again!’ but that is exactly what Governor Cuomo asked for,” Rassbach said in a statement. “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.”
Cuomo’s office did not respond to a request for comment.Follow @NinaPullano
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