Posted on Fri Nov 20th 2020 5:48 pm by Amy Howe
New York Governor Andrew Cuomo on Friday called on the Supreme Court to stay out of the state’s battle against two Orthodox Jewish synagogues in New York City over an executive order restricting attendance at places of worship as part of efforts to fight the coronavirus . Cuomo told judges that due to “continued progress in containing the spread of COVID-19”, the restrictions the synagogues asked of the court no longer apply to them.
Democrat Cuomo issued the order that was at the center of the dispute in October. The purpose of the order, and the initiative that is implementing the order, explained Cuomo in the file filed on Friday, is to identify clusters of COVID-19 cases and take “short-term aggressive measures” in and around the areas where These clusters are in place to prevent the virus from spreading, and then monitor the cases to determine how to proceed from there. When a cluster is identified, the area immediately around the cluster is referred to as the “red” zone. The area around the red zone is called the “orange” zone, and the area around the orange zone is called the “yellow” zone. Attendance at church services is limited to 10 people in religious institutions in the red zone and 25 people in the orange zone. Participation in the yellow zone is limited to 50% of the maximum occupancy of the building.
The synagogues challenged the 10 and 25 person restrictions in federal court in New York, arguing that the restrictions made it impossible for them to hold services for all of their congregation. The district court denied a motion to block enforcement of the order, and the U.S. Circuit Court of Appeals declined to intervene while the synagogues were appealing. The synagogues then came to the Supreme Court on Tuesday and asked the judges to put the restrictions on hold or, alternatively, allow a review without waiting for the 2nd Circuit to rule on their appeal.
In a filing from New York Attorney General Barbara Underwood, the state stressed its efforts to fight the disease are working. As a result, the synagogues (and the rest of New York City) are now in yellow zones, where places of worship are limited to 50% of maximum occupancy – a limit synagogues don’t challenge.
In any case, the state said, both the district court and the 2nd district rejected the synagogues’ claim that the executive ordinance was motivated by hostility towards the Orthodox Jewish community. The different zones, according to the state, affect different companies and religious institutions. Some zones do not contain Orthodox Jewish communities, while some Orthodox Jewish communities “remain untouched”.
Although Cuomo at a press conference in October acknowledged the prospect that his order could interfere with religious services, the state added, “it made it clear that because of its religious nature, the order did not target gatherings”. Instead, the state declared, the order concentrated because of its “super-spreader potential” on “mass gatherings” – for example in places of worship.
Cuomo did not blame the ultra-Orthodox Jewish community for the spread of COVID-19. And if anything, the state said, the executive order treats religious gatherings more favorably than secular activities that carry comparable risks – such as plays, concerts, spectator sports, and movies – by remaining open and limited.
The state also opposed the synagogues’ suggestion that blocking the enforcement of the restrictions would bring the state “in line with the approaches of other states”. “The approaches of other states,” New York told the judges bluntly, “are not working,” as the current COVID statistics reflect. Even if “officials in other states deem certain measures sufficient to protect their own citizens,” New York concluded, “it does not prevent New York State from pursuing a different public health strategy.”
Ultimately, the state rejected the synagogues’ suggestion that the court should take up its appeal before the 2nd circuit can decide on it. As the restrictions for 10 and 25 people do not currently apply to the synagogues, there is no urgency for your request. In addition, the 2nd circuit has agreed to expedite their appeal. The hearing is scheduled for December 18th.
The state made similar arguments on Wednesday when it opposed a motion by the Roman Catholic Diocese of Brooklyn to lift attendance restrictions. In its filing in this case, the state praised the steps the churches have voluntarily taken to reduce the risk of COVID-19 transmission. However, these measures should not constitute an exception to the presence restrictions: Among other things, these protocols have not yet been independently tested in COVID hotspots. And the state is not obliged to “negotiate COVID-19 restrictions for every single place of worship from building to building.”
Shortly after filing its appeal on Wednesday, the state sent a letter to the court informing the judges of the changes in the classification of the areas where the diocesan churches are located. Beginning November 20, the letter stated: “None of the churches in the diocese will be affected by the congregation size restrictions that it wishes to impose.”
This post was originally published on Howe on the Court.
Amy Howe, New York, urges judges not to intervene in any disputes over restrictions on church attendance.
SCOTUSblog (November 20, 2020, 5:48 p.m.), https://www.scotusblog.com/2020/11/new-york-tells-justices-not-to-intervenen-in-conflict-over-attendance-limits – to church services /