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Hamodia

A federal judge has rejected a request filed by Catholics and Orthodox Jews to overturn New York State’s recent limitations on houses of worship, and school closures.

“For purposes of the pending motion, the court is satisfied that the [shutdown guidelines were] guided by science and data, and not a mere desire to target religion,” wrote Judge Gary Sharpe, of the U.S. District Court for the Northern District of New York, based in Albany, in a ruling Friday.

Last June, the group of Catholics and Jews brought the case, Soos v. Cuomo, against the then-guidelines, which enacted stronger limits on houses of worship than were in place against businesses and Black Lives Matter protests. At the time, services at houses of worship were limited to 25% of occupancy; Sharpe granted an injunction, forcing the state to permit religious gatherings at houses of worship to 50% occupancy, and outdoors of any size, so that they be treated equally with businesses and protests.

But then – months after the state had begun reopening – on October 6, citing a rise in COVID cases in areas of the state, predominantly those with large Orthodox Jewish populations, Cuomo enacted a “Cluster Action Initiative”  – which, in the most-restrictive “red zones,” limits houses of worship to 25% occupancy or 10 worshipers, whichever is fewer, and closes all schools and “non-essential businesses.” (The school closures were lifted on Friday.) Attorneys Christopher Ferrara and Michael McHale of the Thomas More Society, a public-interest law firm focusing on religious liberties, filed an amended complaint in the Soos case (adding Jewish and Catholic plaintiffs, and defendants from New York State and City governments), requesting a temporary restraining order or preliminary injunction against enactment of the restrictions on houses of worship and school closures, contending that the restrictions violated their constitutional freedoms of religious liberty, speech, assembly, expression, and equal protection.

But Sharpe denied the request Friday, citing U.S. Supreme Court precedent that, as Sharpe wrote, “instructs courts to refrain from Monday-morning quarterbacking the other co-equal, elected branches of government when those branches are responding to difficulties beyond those that are incidental to ordinary governance.”

While government must still abide by “broad limits” to liberty-infringements, Sharpe ruled that the Cluster Action Initiative did not exceed these limits.

Contrasting this case with the one in June, Sharpe said that in the present instance, “religious gatherings are treated more favorably [emphasis added] than their comparators,” noting that whereas the Cluster Action Initiative completely bans large gatherings and non-essential businesses, houses of worship may operate at limited capacity.

“To find in plaintiffs’ favor under these circumstances,” Sharpe wrote, “would be to second-guess the State’s medical experts and scientific and public health findings with respect to what constitutes an ‘essential’ business, which would run afoul of” Supreme Court precedent.

Moreover, the judge said that “the State has arguably shown that, according to their medical and public health experts, religious gatherings pose a unique risk to the spread of COVID-19, and, thus, ‘although the [Initiative] establishes rules specific to religious gatherings, it does so because they are gatherings, not because they are religious.” Sharpe also quoted state Health Commissioner Dr. Howard Zucker’s assertion that the State looks “solely at the data and do[es] not take into account who or what are located in th[e] zone[s]—whether it is a non-essential business, school (religious or otherwise), yeshiva, church, synagogue, or a car dealership.”

Sharpe said that the “fundamental question” is not “whether the court agrees or disagrees with the Initiative, or that the underlying data and science necessitates a reinstatement of gathering restrictions.” Rather, the court simply must determine “whether the Initiative exceeds the broad deference afforded to the elected branches of government to manage the spread of deadly diseases under [Supreme Court precedent]. The court is not convinced that it does.”

Therefore, Sharpe denied the request for an injunction, saying, “The court is satisfied that the Initiative was guided by science and data, and not a mere desire to target religion, and thus, the Initiative does not exceed the ‘broad limits’ ” of liberty-infringement allowed under Supreme Court precedent.

Following the ruling, Mordechai Avigdor, president of a shul in Brooklyn and a plaintiff in the case, told Hamodia, “The judicial system is systematic and deliberate. Being granted a restraining order is difficult at best, but in such important matters, it is crucial to make a stand. Let the governor get the message that religious freedoms are worth fighting for. As the plague wanes, as we hope it will, he must understand the crucial role religion plays in the lives of Orthodox Jewry and lift his order post haste. As a plaintiff in the case, I feel this religious liberty is worth fighting for, even to the highest court of the land.”

The plaintiffs have filed  a notice of appeal with the U.S. Court of Appeals for the Second Circuit. Previous requests for restraining orders and injunctions in separate lawsuits by Agudath Israel and the Catholic Diocese of Brooklyn have been denied, and are also awaiting appeal before the Second Circuit. Hearings in both cases are set for this week.

Another case, brought by shuls in Monsey, is pending in the Southern District of New York. Judge Sharpe is also set to hear a different suit this week, against the school closures, brought by a Far Rockaway yeshivah.

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