ALBANY, N.Y. — A federal judge has ruled that the State of New York, while having a valid interest in slowing the spread of COVID-19, must give religious gatherings the same rights as secular industries in its reopening plan. He also opined that Gov. Andrew Cuomo and New York City Mayor Bill de Blasio gave “preferential treatment” to mass protests over the death of George Floyd by supporting the crowds while maintaining restrictions on the size of religious gatherings.
“Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules,” wrote Judge Gary Sharpe, nominated to the bench by then-President George W. Bush, on Friday.
“They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment,” he said.
Two Roman Catholic priests and three members of an Orthodox Jewish synagogue had sued Cuomo and De Blasio, as well as Attorney General Letitia James, for restrictions on religious gatherings that they said burdened their free exercise of religion.
“On one occasion, the congregation was holding a prayer service outside [in March] when a police officer arrived and informed them that they were conducting an ‘illegal gathering,’ despite the fact that only eight congregants were present, and they ‘were at least 20 feet apart from each other,'” Sharpe explained regarding the grievance of one attendee of Chabad of Marine Park.
“When the congregants refused to disperse, the police officer threatened them with fines and arrest.”
“Perr and his fellow congregants were subject to ‘constant police presence and interference,’ which caused them to live in fear and took from them the ‘tranquility of worship,'” Sharpe said of another complainant.
One man attempted to hold services in his back yard, but “he was subjected to harassment and ‘bullying’ from his neighbors,” Sharpe said, “which he alleges was ‘incited by . . . [Mayor] de Blasio, who vowed to crack down on the Jewish community for failing to observe [Governor] Cuomo’s ban on religious gatherings.'”
As previously reported, in March, Cuomo issued Executive Order 202.10, which states that “[n]on-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time.”
A guidance webpage from Empire State Development outlined that, in relation to religious gatherings, in-person church gatherings “of any size,” including house church meetings, were “canceled or postponed.”
“Pursuant to Executive Order 202.10, all non-essential gatherings of individuals of any size for any reasons (e.g. worship services, parties, celebrations, or other social events) are canceled or postponed,” the page read. “Congregate services within houses of worship are prohibited.”
“Further, individuals should not gather in houses of worship, homes, or other locations for religious services until the end of this public health emergency,” it stated.
Likewise, de Blasio warned faith leaders that same month not to open their doors or the New York Police Department (NYPD) and/or other entities would shut the building down — and if there were repeated and willful violations, the facility could be shut down permanently.
“So, I want to say to all those who are preparing the potential of religious services this weekend, if you go to your synagogue, if you go to your church and attempt to hold services after having been told so often not to, our enforcement agents will have no choice but to shut down those services,” he said, adding that it is the “last thing he would like to do” because he understands the importance of faith.
“So, the NYPD, Fire Department, Buildings Department, everyone has been instructed that if they see worship services going on, they will go to the officials of that congregation, they’ll inform them they need to stop the services and disperse. If that does not happen, they will take additional action up to the point of fines and potentially closing the building permanently.”
For areas that were approved for Phase 2 of the reopening plan, the State recently allowed up to 10 people to gather for religious meetings, and soon “relaxed” the restriction to 25 percent capacity. In New York City, however, the 10-person limit remains in effect for both indoor and outdoor services.
On June 10, the two Catholic priests and three Jewish synagogue members sued Cuomo and de Blasio, asserting that the restrictions are “arbitrary” and “pseudo-scientific.”
“[W]hile defendants jointly impose this arbitrary, pseudo-scientific regime of strict gathering limits for some groups and activities but not others, they are permitting closely packed gatherings of thousands to protest the wrongful death of George Floyd at the hands of a police officer, which have been taking place in New York City and every other major city in New York State day-after-day since Floyd’s death on May 25,” the complaint stated.
“Favored businesses, entities and activities, as well as favored mass demonstrations such as those over the death of George Floyd, are totally exempt from the challenged gathering limits, while defendants irrationally and capriciously continue to forbid religious ceremonies, high-school graduations, children playing in the park, and other comparatively tiny gatherings on the now patently specious grounds that they will cause death if allowed to occur,” it said.
On Friday, Judge Sharpe agreed. He pointed argument submitted by the State and City of New York, which he did not find persuasive. Sharpe said that Cuomo and de Blasio had the power to regulate the protests, but both their words and actions served as a statement that they were giving the masses in the streets a pass.
He quoted from both Cuomo and de Blasio, the latter of whom stated that the national outrage over Floyd’s death “is not the same question as the understandably aggrieved store owner, or the devout religious person who wants to go back to services.”
“Despite the State’s claim that enforcement power rests with local authorities in an effort to show that selective enforcement against mass race protesters is not a de facto exemption imposed by Governor Cuomo or Attorney General James, Governor Cuomo clearly has authority over the New York State Police and broad powers of enforcement,” Sharpe wrote.
“And, in any case, Governor Cuomo’s comments, which applauded and encouraged protesting and discouraged others from violating the outdoor limitations, likely demonstrate the creation of a de facto exemption.”
“Mayor de Blasio is a ‘local authority’ with clear enforcement power and has at his disposal one of the largest municipal police departments in the world, and has also actively encouraged participation in protests and openly discouraged religious gatherings and threatened religious worshipers,” Sharpe stated.
He further noted that retail stores and restaurants are allowed to operate at 50% capacity during Phase 2, but “the 25% indoor capacity limitation applies only to houses of worship.”
“Indeed, that limitation is the only one of its kind in the tangle of executive orders and the guidance document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity.”
Sharpe also pointed out that, starting today, outdoor and indoor graduations may accommodate up to 150 people, and so, “the State must extend a similar exemption to plaintiffs absent a compelling reason to the contrary.”
“[T]here is nothing materially different about a graduation ceremony and a religious gathering such that defendants’ justifications for a difference in treatment can be found compelling,” he said.
Sharpe consequently placed an injunction on the State and City from placing a burden on religious gatherings that is unequal to those industries in Phase 2 and prohibited the government from “enforcing any limitation for outdoor gatherings provided that
participants in such gatherings follow social distancing requirements.”
The Thomas More Society, which represented the plaintiffs, applauded Friday’s ruling.
“We are pleased that Judge Sharpe was able to see through the sham of Governor Cuomo’s ‘Social Distancing Protocol’ which went right out the window as soon as he and Mayor de Blasio saw a mass protest movement they favored taking to the streets by the thousands,” remarked Special Counsel Christopher Ferrara. “Suddenly, the limit on ‘mass gatherings’ was no longer necessary to ‘save lives.’ Yet they were continuing to ban high school graduations and other outdoor gatherings exceeding a mere 25 people.”
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