This is huge: Federal court permanently prevents Gov. Cuomo from restricting attendance at houses of worship

NEW YORK – In a win for houses of worship across the state of New York, a federal judge has permanently barred Democratic Governor Andrew Cuomo from imposing certain restrictions on attendance at worship services.

In November 2020, the U.S. Supreme Court issued a temporary injunction against Cuomo’s restrictions on indoor worship.

On Tuesday, February 9, 2021, U.S. District Judge Kiyo A. Matsumoto, a George W. Bush appointee, made that ruling permanent.

The current conflict over restrictions at worship services in New York dates back to Cuomo’s Executive Order Number 202.68, issued October 9, 2020.  This order declared that the New York Department of Health was to impose “enhanced public health restrictions” on color-coded areas of the state.  

The colors were “based on cluster-based cases of COVID-19,” with red areas being the most severely affected, orange being of “moderate severity,” and yellow described as “precautionary.”

In “red zones,” church attendance was limited to 25% capacity or 10 persons, whichever was fewer.  In “orange zones,” attendance at houses of worship was limited to 33% capacity or 25 persons, whichever was fewer.

Since its issue, Executive order 202.68 has been extended five times, with no changes to restrictions on church attendance.

After the order was put into place in October 2020, there began a months-long battle to affirm and secure Constitutional protections for the practice of religion, with multiple churches filing lawsuits.

Agudath Israel of America and associated synagogues, for example, brought a case against Governor Cuomo, arguing that Cuomo drew red zones around predominantly Jewish areas.

The Becket Fund for Religious Liberty, which represented the synagogues, noted that the red zones:

“heavily restricted worship, closed schools, and prevented Jewish families from celebrating holidays while mere blocks away, schools were open and restaurants were serving customers.” 

The plaintiffs argued in October 2020 that “Executive Order 202.68’s capacity restrictions on houses of worship in red and orange zones violate the Free Exercise Clause.”

Their initial motion was denied, but the case was later heard before the U.S. Supreme Court in November 2020, conjointly with a case filed by the Roman Catholic Diocese of Brooklyn.

As we previously reported, the U.S. Supreme Court ruled 5-4 to temporarily prevent the state of New York from imposing strict attendance limits on worship services.

The majority opinion read:

“Members of this Court are not public heath experts and we should respect the judgment of those with special expertise and responsibility in this area. 

“But, even in a pandemic, the Constitution cannot be put away and forgotten.”

The opinion went on to say:

“The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

Cuomo’s response to this Supreme Court ruling was to call it “irrelevant.” He argued that the houses of worship bringing the complaints no longer were located within the red and orange zones at the time of the ruling, and as such, the ruling was “moot.”

The case then went to the United States Court of Appeals for the Second Circuit.

In December, 2020, the Second Circuit held that:

“‘both the fixed capacity and the percentage capacity limits on houses of worship’ in the red and orange zones ‘are subject to strict scrutiny.’” 

Then on February 8, 2021, the U.S. District Court of the Eastern District of New York held an injunction hearing.

Judge Matsumoto noted that the defendant, Governor Cuomo:

“has agreed to an injunction against enforcement of the 25% and 33% capacity limits in red and orange zones, respectively, and has not presented additional evidence to supplement what was submitted in opposition to the Plaintiffs’ motion for a temporary restraining order and preliminary injunction.”

Matsumoto’s ruling specified:

“a permanent injunction against enforcement of EO 202.68’s 25% capacity or maximum of 10-people, and 33% capacity or maximum of 25-people limitations on houses of worship, respectively in red and orange zones.”

Cuomo’s attorneys also agreed that houses of worship would be removed from EO 202.68 before the end of February 2021.

In light of Cuomo’s agreement, Eric Rassbach, vice president and senior counsel at Becket, noted:

“It’s not every day you see a Governor beg a federal district court ‘Stop me before I discriminate again!’ but that is exactly what Governor Cuomo asked for.” 

Rassbach added:

“The Governor is desperately trying to avoid testimony showing that his orders shutting down synagogues and churches weren’t based on public health, but on politics.”

Cuomo’s agreement with the abolition of restrictions on worship attendance also comes on the heels of a recent exposé in the New York Times.

According to that publication, multiple top health officials with the New York State Health Department have resigned, including the deputy commissioner for public health, the director of the bureau of communicable disease, and the medical director for epidemiology.  The state epidemiologist is leaving as well.

The central focus of these departures, according to the Times, is contention with Governor Cuomo.

The publication notes that Cuomo has clashed with health officials and “has all but declared war on his own public health bureaucracy.”

For instance, health officials have reportedly been learning about changes to health policy at news conferences, after which Cuomo would ask them to “match their health guidance to the announcements.”

Furthermore, the Times states, the State Health Department was “not deeply involved” in the restrictive decisions based on Cuomo’s color coding schemes.

Referring to Cuomo’s apparent unilateral actions, Becket attorney Rassbach stated:

“We welcome Governor Cuomo’s surrender, even if it took him way too long to figure out he was acting illegally.”

Rassbach continued:

“And we hope he learned something along the way. If he writes another COVID book, maybe he can give it the title I Did It My Way—And Boy Was I Wrong!

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Cuomo smackdown: Supreme Court rules to temporarily bar NY from enforcing attendance limits in places of worship

NEW YORK- On November 25th, the U.S. Supreme Court ruled to temporarily bar New York from enforcing strict attendance limits on places of worship in areas that have been designated as coronavirus “hot spots”.

According to reports, the court ruled that Governor Andrew Cuomo’s executive order violated the First Amendment’s “free exercise” clause and actively discriminated against religious institutions.

The groups sued to challenge attendance limits at houses of worship in areas designated red and orange zones, where New York had already capped attendance at ten and 25 people. However, the groups are now subject to less-restrictive rules because they’re not in areas that have been designated as yellow zones.

The justices split five-four to bar the state from enforcing the restrictions against the groups, for now, with new Justice Amy Coney Barrett in the majority. The court’s three liberal justices and Chief Justice John Roberts dissented. The unsigned majority decision read, in part:

“Members of this Court are not public heath experts and we should respect the judgment of those with special expertise and responsibility in this area. But, even in a pandemic, the Constitution cannot be put away and forgotten.”

It added:

“The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

The justices acted on an emergency basis while lawsuits challenging the restrictions continued. In the unsigned order, a majority of the court said the restrictions “single out” houses of worship for especially “harsh treatment.”

The court’s recent ruling is in contrast to two decisions it issued back in May and June concerning churches in California and Nevada, which allowed state officials to restrict attendance at religious services.

With Barrett’s liberal predecessor, Justice Ruth Bader Ginsburg on the court, the justices were divided five-four to leave in place pandemic-related capacity restrictions affecting churches in California and Nevada.

The opinion also noted that in red zones, while a synagogue or church cannot admit more than ten people, businesses deemed “essential” from grocery stores to pet shops can remain open without capacity limits.

In orange zones, while synagogues and churches are capped at 25 people, even “non-essential businesses” may decide for themselves how many persons to admit. In his dissent, Roberts wrote:

“There was simply no need for the courts action. None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions.”

He added that New York’s ten and 25 person caps do seem “unduly restrictive.”

He wrote:

“The Governor might reinstate the restrictions, but he also might not and it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.”

The court’s action was a victory for the Roman Catholic Church and Orthodox Jewish synagogues that had sued to challenge state restrictions announced by Cuomo on October 6th. Randy Mastro, an attorney for the Diocese of Brooklyn said in a statement:

“We are extremely grateful that the Supreme Court has acted so swiftly and decisively to protect one of our most fundamental constitutional rights, the free exercise of religion.”

In an email, Avi Schick, an attorney for Agudath Israel of America, wrote:

“This is an historic victory. This landmark decision will ensure that religious practices and religious institutions will be protected from government edicts that do not treat religion with the respect demanded by the Constitution.”

It is still unclear how the case will proceed. However, New York’s Solicitor General Barbara D. Underwood recently informed the court that recent changes to the policies in question meant none of the diocese’s churches or the area’s synagogues would any longer be subject to the restrictions.

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Author: Lizzy Murica

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