BROOKLYN, N.Y. (CN) — As the coronavirus spikes in a handful of New York communities on the eve of three Jewish holy days, an Orthodox Jewish activism group asked a federal judge Thursday to lift state restrictions that would limit in-person synagogue attendance.
“Under these new restrictions, then, it is impossible for Plaintiffs to both comply with the State-issued restrictions on houses of worship and fulfill their religious obligations,” Agudath Israel of America, an international religious group that represents the ultra-Orthodox community, says in the 21-page complaint.
Filed in the Eastern District of New York, the civil suit seeks a temporary restraining order to bar the state of New York from enforcing its limits on house of worship attendance in certain areas of the state on the eve of the Hoshanah Rabbah, Shemini Atzeres and Simchas Torah holidays beginning Friday.
Governor Andrew Cuomo announced the new restrictions two days earlier as part of a cluster initiative, imposing a 25% capacity cap on synagogue and other houses of worship in so-called “red zones,” up to a 10-person maximum.
Agudath Israel of America is represented in its suit by Avi Schick with Troutman Pepper in Manhattan. They say Cuomo’s restrictions appear to 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 goes into effect, Agudath Israel of America alleges that tens of thousands of Orthodox Jews will see their observances disrupted, “depriving Plaintiffs and their congregants of the critical religious worship and practices associated with these upcoming holidays.”
Services for Hoshanah Rabbah services taking place Friday take approximately 90 minutes to two hours. For a synagogue the size of co-plaintiff Agudath Israel of Madison, the capacity limits would require over 20 services on Friday morning to serve the entire congregation. “That is simply impossible,” the complaint states.
The complaint further alleges that the brunt of restrictions falls disparately on Orthodox Jews, who do not use vehicular travel on Sabbath or on religious holidays and thus are unable to travel to houses of worship for religious practice in other areas not designated as a Covid-19 cluster.
Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel, said Thursday that the synagogues should be allowed to host more congregants while still adhering to Covid safety measures. “Social distancing, masking, and all health precautions must, of course, be observed,” Zwiebel wrote in a statement. “However, we think that it is possible to stay safe and at the same time have more than ten people in a Shul building that is meant to hold hundreds.”
Agudah’s Chairman of the Board Shlomo Werdiger called the lawsuit a "last resort.” Separately on Thursday, a law firm located in one Brooklyn hot spot brought a federal complaint slamming Cuomo’s designations as arbitrary.
Cuomo ordered the precautionary neighborhood lockdowns to stop the spread of Covid-19 in hot spot ZIP-codes in Brooklyn and Queens, as well as Broome, Orange and Rockland Counties where positive tests have spiked recently.
“Drop a pebble into the pond, the pebble goes in, then there's one ring, two rings, three rings, and the rings continue across the pond. When you see the cluster, you have to stop it at that point," Cuomo said on Tuesday, announcing the color-coded tiers of the lockdown.
In red zones where religious services are limited to 10 people, mass gatherings are prohibited, only essential businesses remain open, and schools are remote-only.
Under the executive order, houses of worship in orange zones are capped at 33% capacity up to 25 people maximum, while in yellow zones schools are open with increased testing, businesses are open and houses of worship are limited to 50% capacity.
"Our strategy is to crush the cluster and stop the spread, and we're announcing a special initiative to do just that. Step one, you take the most dramatic action within the cluster itself where you have the highest density of cases. Understanding that the people in that cluster interface with the surrounding communities, take additional action in the communities surrounding the cluster,” Cuomo said, announcing that fines for sponsors of mass gatherings was increased to $15,000, with the new rules and restrictions in effect for minimum of two weeks.
Cuomo’s executive order immediately prompted criticism 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.
In an Instagram video Wednesday, Tischler condemned the previous night’s fires and violence while pledging to keep synagogues and yeshiva religious schools open.
"They give you a fine — take it, we will not pay it," Tischler said, his voice hoarse from several days of yelling. "I will be in City Council and I will put a bill into remove all fines,” he said in the video.
Representatives for Governor Cuomo did not immediately respond to request for comment Thursday afternoon.
Thursday morning Cuomo announced that a record high amount of Covid-19 diagnostic test results, 145,811, were reported to New York state the previous day.
In the top 20 ZIP codes in areas that have seen recent outbreaks — Brooklyn, Queens and Rockland and Orange Counties — 7,349 tests were conducted, yielding 426 positives or a 5.8 percent positivity rate, compared to a 1.01% positivity rate in the remainder of the state.
Cuomo on Thursday blamed the spikes on a lack of local enforcement.
"At one time, we had rules that closed down houses of worship — synagogues, churches, mosques, et cetera," he said at a press briefing. "Closing down is more dramatic than the current rule. Why are they so upset about the current rule when there was a previous rule that was more dramatic? Because the previous rules were never enforced, that's why."
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