New York Orthodox Jewish Community’s Bid to Lift Covid Limits Denied

NYPD officer attempt to peacefully disperse a crowd of Jewish Orthodox community members gathering around journalists, Wednesday in the Borough Park neighborhood of the Brooklyn borough of New York. (AP Photo/John Minchillo)

BROOKLYN (CN) — Rejecting claims of interference with Orthodox Jewish religious observances, a federal judge on Friday refused to block neighborhood lockdowns ordered by New York’s governor in Covid-19 hotspot communities seeing drastic spikes in transmission of the virus. 

At an emergency hearing Friday afternoon, U.S. District Judge Kiyo Matsumoto denied a bid by religious leaders from New York’s Orthodox Jewish community to halt new coronavirus regulations in the court through a preliminary injunction and temporary restraining order. 

Judge Matsumoto found that the coalition of Orthodox Jewish plaintiffs failed to show a likelihood of success on the merits of their claim that Governor Andrew Cuomo’s executive order — capping attendance at religious services in so-called “red zone” Covid-19 hotspots to a maximum of ten people — is unconstitutional or otherwise violates the Free Exercise Clause. 

Judge Matsumoto, a George W. Bush appointee, noted in her ruling that that houses of worship in New York had already been locked down in the early phases of the pandemic and that religious practitioners managed to endure through the restrictions. 

Agudath Israel of America, an international religious group that represents the ultra-Orthodox community, led a 21-page complaint in federal court in Brooklyn on Thursday, seeking a temporary restraining order to bar the state from enforcing its limits on house of worship attendance in certain hotspot ZIP codes in the state on the eve of the Hoshanah Rabbah, Shemini Atzeres and Simchas Torah holidays beginning Friday evening. 

“This ruling is disappointing, to say the least,” Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel said on Friday. 

“Of course we understand the importance of taking precautionary measures against COVID-19, but there are ways to do so without totally disrupting our ability to use our shuls. Looking ahead, we will continue to do all in our power to defend our constituents’ rights, while at the same time promoting all appropriate health protocols,” Zwiebel added in a statement Friday titled “Crushing Disappointment.”

Cuomo announced the new restrictions earlier this week as part of a cluster initiative, imposing a 25% capacity cap on synagogues and other houses of worship in “red zones,” up to a 10-person maximum.  

The governor noted that “red zone” focus areas are home to 2.8% of the state’s population, yet have been where 19.7% of all positive cases statewide have come from over the past three weeks. 

Agudath Israel of America is represented in its lawsuit by Avi Schick with Troutman Pepper in Manhattan. They alleged Cuomo’s restrictions appear to be putatively targeted at people of faith, discriminating against religious practice while permitting comparable secular conduct.  

With the upcoming holidays beginning the same day Cuomo’s order went into effect, Agudath Israel of America alleged that tens of thousands of Orthodox Jews would see their observances disrupted, “depriving Plaintiffs and their congregants of the critical religious worship and practices associated with these upcoming holidays.” 

In the state’s opposition brief, the New York attorney general’s office argued the groups’ case fails because the governor’s executive order is “rationally related to the government’s critical interest in avoiding spikes in COVID-19 cases and the concomitant threat to public health.” 

“Regardless, even if strict scrutiny applied here (and it does not), the fight against COVID-19 is a governmental interest of the highest order, and the Executive Order is narrowly tailored to meet that interest because it focuses on restricting gatherings in and around areas where the pandemic cases are spiking,” wrote assistant attorney general Todd Spiegelman. 

The state also argued in court filings that the plaintiffs could not establish irreparable harm, given that the regulations still permit religious gatherings in all three impacted zones just with restricted capacity.  

Cuomo defended his executive order at a briefing Friday. 

“We have always attacked clusters. This cluster happens to be predominantly the ultra-orthodox in Brooklyn and Queens. We have always attacked clusters,” he said. 

“This is not the first time the state has taken this action. ‘Oh, unprecedented state action.’ No, it’s not unprecedented; it is the pattern of behavior that we have used from the beginning. Bars, restaurants, clusters, concert in the Hamptons — whenever there is a cluster, we have attacked it,” Cuomo said. So, this is nothing new.” 

Cuomo’s executive order immediately prompted backlash this week from some Orthodox Jewish community leaders, including city council candidate Harold “Heshy” Tischler, who led several nights of protests in the streets of Brooklyn’s Borough Park neighborhood to stop the Covid-19 lockdown measures.  

“We are at war!” Tischler shouted to the crowd of hundreds of protesters along 13th Avenue in South Brooklyn, who were seen setting fires and burning face masks late Tuesday night. “You are my soldiers,” Tischler, a populist right-wing radio host, told the crowd. 

On Friday, Tischler posted a video on Twitter, announcing that he would be turning himself into the NYPD after the holiday weekend for allegedly inciting a riot. 

The Jewish holidays of Shemini Atzeres/Simchas Torah began Friday at 6:00 p.m. and continue through Sunday evening. 

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