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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