The U.S. Court of Appeals for the Second Circuit ruled on Monday that Gov. Andrew Cuomo’s (D-N.Y.) executive order limiting attendance at places of worship “discriminates against religion on its face” in Agudath Israel of America‘s case against the governor.
The organization, which was founded in 1922 to serve the American Orthodox Jewish community, launched its lawsuit after months of what it claimed was Gov. Cuomo’s targeting and ostracizing of Jewish communities during the COVID-19 outbreak.
The Yeshiva World first reported this ruling Monday afternoon.
Prior to Monday’s ruling, the U.S. Supreme Court had issued an injunction against the 10- and 25-person limitations ordered by the New York governor, pending Agudath Israel’s appeal.
On the last day of Hanukkah, December 18, the Second Circuit Court of Appeals heard Agudath Israel’s appeal. On top of challenging the 10- and 25-person limits, the case challenged the 25% and 33% capacity limits too.
The 25% and 33% limits on attendance at places of worship, the court ruled, are subject to strict scrutiny.
Regarding the Supreme Court’s injunction opinion, the Second Circuit believes that it “addressed only the fixed capacity limits, but the same reasoning applies to the Order’s percentage capacity limits, which by their own terms impose stringent requirements only on houses of worship. One could easily substitute the percentage capacity limits for the fixed capacity limits into the Supreme Court’s discussion of strict scrutiny without altering the analysis. Thus, both the fixed capacity and percentage capacity limits on houses of worship are subject to strict scrutiny.”
Moreover, the court noted that it applies strict scrutiny to determine if a government policy impermissibly “‘devalues religious reasons’ for congregating ‘by judging them to be of lesser import than nonreligious reasons.’”
Additionally, the court declared that Cuomo’s order was not religiously neutral.
“To determine neutrality, we begin with the [Order’s] text, ‘for the minimum requirement of neutrality is that a [government policy] not discriminate on its face,’” it stated. “The order fails this basic standard by explicitly imposing on ‘houses of worship’ restrictions inapplicable to secular activities.”
“The Court also found that Governor Cuomo’s Order was not generally applicable: the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them ‘essential,’ while imposing greater restrictions on ‘non-essential’ activities and religious worship,” the statement continues. “That lack of general applicability is also subject to strict scrutiny.”
While Cuomo has asserted that “all” activities unrestricted by the executive order show lesser risks of COVID-19 infection than religious ceremonies, the governor has never claimed that the unrestricted category of “essential” activities was created based on transmission risk, The Yeshiva World notes.
Rather than that, the court declared, “[t]he only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”
Toward the end of the statement, the court expressed skepticism about Cuomo’s repeated comments trying to defend the restrictions on places of worship because of the special risk they presented.
“Recent public statements from the Governor cast some doubt on his experts’ claims that religious worship is self-evidently riskier than secular activities,” the court noted. “In an address on December 11, 2020, the Governor presented a chart showing that, per ‘Statewide Contact Tracing Data,’ ‘Religious Activities’ were the exposure source for only 0.69% of new COVID-19 infections in the state from September through November. This figure is comparable to, or lower than, the equivalent proportion for categories of activity deemed ‘essential’: 0.84% for ‘Manufacturing,’ 0.66% for ‘Construction,’ and 0.55% for ‘Professional Services.'”
The executive order in question dates back to October, when COVID-19 outbreaks were beginning crop up again in New York City, which had been the nation’s coronavirus epicenter back in the springtime when the pandemic began in the United States. Many of these outbreaks occurred in “red zones” that were mostly located in parts of Queens and Brooklyn, specifically in parts of the boroughs that had large Orthodox Jewish communities. Cuomo restricted the attendance in houses of worship in these red zones, which then prompted outrage and protest from Jews in New York, claiming their First Amendment rights were being violated.
Avi Schick, who represented the plaintiffs challenging Cuomo’s executive order, is reported by The Yeshiva World as saying “this decision has important ramifications that go way beyond COVID restriction. It is a clear statement from the Second Circuit that government can’t disfavor religion merely because they see no value in it. I expect that this decision will stop future governments from imposing rules that restrict religion, and also sets a standard that we can rely on in court in those instances when government does not heed that lesson.”
Gov. Cuomo’s office did not respond to this reporter’s request for an immediate comment on the ruling.
You can follow Douglas Braff on Twitter @Douglas_P_Braff.
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Cuomo says he’ll ‘fully cooperate’ with NY AG’s review of sexual harassment claims
New York Gov. Andrew Cuomo (D) said Wednesday that he will “fully cooperate” with the state attorney general’s independent review into sexual harassment allegations made against the currently scandal-ridden governor, saying, “I fully support a woman’s right to come forward.”
Last Wednesday, Lindsey Boylan, who served in his administration for over three years, accused Cuomo of suggesting to her on a 2017 flight that they play strip poker, inappropriate touching, and kissing her on the lips without her consent.
Following Boylan’s accusations, 25-year-old Charlotte Bennett alleged the governor indicated interest in having an affair with her while she was serving in his administration as a health policy adviser. In a Saturday New York Times report, Bennett told the newspaper that Cuomo asked her if she had “ever been with an older man,” adding that “age doesn’t matter” in relationships.
At Wednesday’s press briefing, the Empire State governor addressed the accusations leveled against him over the past seven days by three women and New York Attorney General Letitia James’ (D) independent review into those claims, which she announced on Monday was formally proceeding.
“As you probably know, the attorney general is doing an independent review, and I will fully cooperate with that review,” Cuomo said at the beginning of his statement. “Now, the lawyers say I shouldn’t say anything when you have a pending review until that review is over. I understand that, I’m a lawyer, too. But, I want New Yorkers to hear from me directly on this.”
“First, I fully support a woman’s right to come forward,” the governor began. “And I think it should be encouraged in every way. I now understand that I acted in a way that made people feel uncomfortable. It was unintentional and I truly and deeply apologize for it. I feel awful about it, and frankly I am embarrassed by it, and that’s not easy to say. But that’s the truth.”
This echoes what Cuomo said in a Sunday statement about the allegations, in which he stated he “may have been insensitive” during his tenure but charged his accusers of misinterpreting his actions, saying, “I acknowledge some of the things I have said have been misinterpreted as an unwanted flirtation… I am truly sorry about that.”
During his Wednesday remarks, Cuomo iterated “I never touched anyone inappropriately,” repeated that sentence, then said “I never knew at the time that I was making anyone feel uncomfortable” and repeated that one too.
“And I certainly never, ever meant to offend anyone or hurt anyone or cause anyone any pain. That is the last thing I would ever want to do,” he continued. “I ask the people of this state to wait for the facts from the attorney general’s report before forming an opinion. Get the facts, please, before forming an opinion.”
“I also want you to know that I have learned from what has been an incredibly difficult situation for me as well as other people, and I’ve learned an important lesson,” the governor said at the end of his statement. “I’m sorry. I’m sorry for whatever pain I caused anyone, I never intended it, and I will be the better for this experience.”
Amid Boylan and Bennett’s allegations, another report of Cuomo sexually harassing a woman has cropped up. On Monday, a woman named Anna Ruch accused the governor of placing his hands on her cheeks—without her consent—at a 2019 wedding reception and asking if he could kiss her. A photograph of the two together at the event has also been circulating on social media.
Asked at Wednesday’s briefing about the pictures that have resurfaced of him being touchy with people, particularly that of him and Ruch, the governor claimed that it is his way of greeting people.
“I understand the opinion of—and feelings of—Ms. Ruch,” Cuomo said. “You can find hundreds of pictures of me making the same gesture with hundreds of people—women, children, men, etc. You can go find hundreds of pictures of me kissing people. […] It is my usual and customary way of greeting.”
Moreover, the governor said that his father, former Gov. Mario Cuomo, would do the same thing.
“By the way, it was my father’s way of greeting people,” Cuomo said, explaining, “You’re the governor of the state, you want people to feel comfortable, you want to reach out to them.”
He also mentioned that he kisses and hugs legislators and noted that at an event in Queens the other day he hugged pastors and state assembly members.
Furthermore, the governor said that his intent “doesn’t matter,” saying, “What it matters is if anybody was offended by it.”
“But if they were offended by it, then it was wrong,” he added, going on to say that if they were offended or hurt by it, he apologizes.
You can follow Douglas Braff on Twitter @Douglas_P_Braff.
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