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Court rules in favor of Jewish organization in case against Gov. Cuomo’s COVID-19 restrictions

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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.

RELATED: Gov. Cuomo’s office: ‘We’ve been sued virtually every day’ over COVID-19 actions

RELATED: ‘Dangerous and divisive’: NY Officials slam Gov. Cuomo for singling out Jews in new COVID-19 orders

RELATED: McEnany slams Gov. Cuomo on religious gatherings, other high-profile Dems for violating COVID-19 guidelines

RELATED: Gov. Cuomo: ‘the issue’ of recent COVID-19 outbreaks ‘is with that ultra-orthodox community’

You can follow Douglas Braff on Twitter @Douglas_P_Braff.

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EXCLUSIVE: Former Trump appointee explains an ‘America First Strategy’ in the ME

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Photo: Israeli Government

The author interviewed Ellie Cohanim, one of the authors of the new book: “An America First Approach to US National Security.” Ellie is the former U.S. Deputy Special Envoy to Monitor and Combat Antisemitism under the Trump administration. She is currently a Senior Fellow with the Independent Women’s Forum focusing on Iran, Israel, and global antisemitism, and is a national security contributor for the Christian Broadcasting Network. In 2021, Ellie launched and hosted for Jewish News Syndicate 30 plus episodes of the show “Global Perspectives with Ellie Cohanim.” Ellie spent 15 years in media and NGO management before serving in the public sector. How would you define an “America First” strategy in the Middle East?

Cohanim: An America First strategy in the Middle East would seek to advance American national security interests in that region, while maintaining our status as THE global superpower. To do that, the US would ensure that our principal allies in the region, countries like Saudi Arabia and Israel, are economically and militarily strong, and that our adversaries in the region are deterred.

Postal: How has the United States’ standing in the Middle East differed between the Trump and Biden administrations?

Cohanim: Under President Trump, for four years we had peace, stability and prosperity in the Middle East/North Africa (MENA) region. Under President Biden, in just three tumultuous years there has been war in the region, which holds the potential for becoming a regional conflict and even a nuclear confrontation. Meanwhile, the US’ status in the region and the world has diminished due to Biden’s disastrous mishandling of the Afghanistan withdrawal, his emboldening of the Islamic Republic of Iran, and his weak response to Iranian attacks on our personnel and assets in the region. 

 

Postal: Do you think the United States and Israel are/were in a stronger position to deter Iran’s nuclear and territorial ambitions in Biden or Trump’s administration?

Cohanim: America’s position of strength has not changed under either administration vis-à-vis the Islamic Republic of Iran. What has changed is our Iran policy. Under President Trump’s administration, the US contained and constrained Tehran. Trump applied a “Maximum Pressure” sanctions campaign which left the Iranian Regime with only $4 billion in accessible foreign currency reserves by the end of his term, giving the Iranians less cash and less ability to fund their terror proxies and their nuclear program, and Trump eliminated Qassem Soleimani. While all President Biden needed to do was to continue implementing such successful policies, his administration instead did the exact opposite.  Under the Biden administration, Israel, our leading ally in the region, was attacked for the first time directly from Iranian soil. This was an unprecedented escalatory attack by the Iranian regime, and could only happen under the Biden administration.

Postal: In your chapter of the book, you discuss the weakening of US relations with Israel and Saudi Arabia under the Biden administration. How has the Biden administration affected the likelihood of future normalization between Israel and Saudi Arabia, and deals between Israel and other Muslim countries (i.e., new Abraham Accords)?

Cohanim: The good news is that the Abraham Accords have withstood the test of multiple Hamas provocations against Israel, and now the current war. Despite numerous claims from the Biden administration regarding “successful” efforts to normalize ties between Saudi Arabia and Israel, I do not think that the Biden administration will be able to clinch such a deal. In the Middle East, people have a long memory. Saudi Arabia’s de-facto ruler Crown Prince Mohammed bin Salman (MBS) has not forgotten President Biden’s snub when he first came into office, and Biden’s incredibly poorly advised behavior towards the Crown Prince when he made his first visit to the Kingdom as president. The last thing the Crown Prince wants is to hand Biden his first foreign policy success with a Rose Garden peace deal ceremony. So, I do not believe President Biden can broker Saudi/Israeli normalization.

However, I am also convinced that it is a matter of “when” and not “if” such a peace deal will happen between those two countries, as it serves both of their interests to make such a deal. The Saudis understand better than anyone that it is the Islamic Republic of Iran that threatens the Kingdom’s security and stability, not Israel.

Postal: What do you think of the Biden administration’s latest statements withholding arms to Israel?

Cohanim: President Biden will go down in history for his abject moral failure in not standing by Israel while she fights a five-front war. Biden has shown his despicable personality for trying to keep his anti-Israel arms embargo concealed until he could first deliver a speech on the Holocaust. Biden’s behavior is despicable on so many levels.

Ultimately, Biden is betraying the American people. He came into office presenting himself as a “centrist Democrat,” but has proven repeatedly to be beholden to the radical, extremist, pro-Hamas wing of his party.

Postal: How does the Biden administration’s support of a Palestinian state differ from the Trump administration’s support of a Palestinian state under its Peace to Prosperity framework?

Cohanim: The Biden administration stated that they will “unilaterally recognize” a Palestinian state. What the borders of that state are and who would lead it, nobody knows. 

The Trump administration’s “Peace to Prosperity” was a detailed plan that was premised on the realities on the ground in Israel. The plan required that the Palestinians reach benchmarks proving a real desire to live in peace with their Israeli neighbors. It included over $50 billion in investment in the region, which would have been a road to prosperity for all. Perhaps most significantly, the Palestinian state envisioned under the Trump plan would have been demilitarized, the wisdom of which could not be more clear following the October 7 massacre and attack.

The author would like to thank Ellie Cohanim for participating in this interview.

 

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