NY Occupancy Limits Singled Out Religion, Court Rules

Shoppers dressed in the traditional garb of Hasidic Jews wait to enter a women’s clothing shop on June 8 in Borough Park, Brooklyn, as New York City retail stores opened their doors to permit business activity during the coronavirus pandemic. (AP Photo/Kathy Willens)

(CN) — A federal judge struck down one of New York’s prescriptions for containing the pandemic Friday, one week to the day after Governor Andrew Cuomo ended his daily coronavirus briefings with the boast that the state had gone from “worst to first.”

“On its face, the 25% indoor capacity limitation applies only to houses of worship,” U.S. District Judge Gary Sharpe, a George W. Bush appointee, wrote in a 38-page ruling. “Indeed, that limitation is the only one of its kind in the tangle of executive orders and the guidance document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity.”

Cuomo issued the first restrictions via executive order in March as New York became known as the global epicenter for Covid-19. On June 17, an additional emergency order for religious gatherings was issued by New York City Mayor Bill de Blasio, who clashed with Hasidic communities throughout the national emergency. 

The limitations prompted a federal complaint in Albany by two Catholic priests — the Reverends Steven Soos and Nicholas Stamos — and Orthodox Jews Daniel Schonbrun, Elchanan Perr and Mayer Mayerfeld chafed at the limitations.

Pointing to expressions of support for Black Lives Matter protests, Judge Sharpe on Friday accused the governor and mayor of playing favorites.

“Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules,” Sharpe wrote. “They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment.”

Unlike most religious gatherings, Black Lives Matter protests have taken place outdoors. Masks usage has been prevalent, and New York City did not report any protest-related upticks in infections this week, nearly one month into what has been a global showing of civil unrest over systemic racism and unchecked police abuses.

By contrast, religious gatherings have been a documented vector of coronavirus infections internationally, from Malaysia to Iran to the United States.

Given the risk of spreading the various, states throughout the country have issued different orders on religious gatherings, which became of the subject of various legal challenges in Kansas, Illinois and Mississippi.

Sharpe also found New York’s exemption for large, outdoor graduation ceremonies a double-standard.

“And there is nothing materially different about a graduation ceremony and a religious gathering such that defendants’ justifications for a difference in treatment can be found compelling,” he wrote.

The judge ordered a single standard for religious and secular gatherings, both indoors and outdoors.

“Indeed, in the absence of an injunction, plaintiffs’ religious activities will be burdened and continue to be treated less favorably than comparable secular activities,” the opinion states. “An injunction, on the other hand, does not undercut defendants’ interest in controlling the spread of Covid-19, provided that plaintiffs abide by social distancing guidance.”

The New York City Law Department deferred comment to the state. “The city was following the governor’s executive order,” its spokesman said. “We will review this new ruling and work with the state on next steps.”

The governor’s office did not respond to a request for comment.

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