Agudath Israel of America, et al. v. Cuomo, No. 20-3572; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3590 (2nd. Cir.)  Stay pending appeal denied on November 9, 2020.

New York has restricted gatherings by size according to perceived geographic intensity of COVID-19 infections.  Religious groups have appealed a federal district court’s denial of injunctive relief that would preclude enforcement of New York’s order.  

Noting first that the Jewish petitioners failed to request a stay pending appeal in the federal district court, the Second Circuit then denied relief from operation of the pandemic measures pending appeal to Jews and Catholics alike

The Second Circuit commenced by stating that strict scrutiny does not apply to neutral and generally applicable laws.  The religious groups have been unable to establish that the pandemic restrictions are not neutral.  The restrictions on gatherings affect religion and secular groups similarly, and are premised on the prevalence of infection.  

The Supreme Court recently denied similar relief, the Second Circuit judges found, and the dissent in the appeal in this case has not persuaded the deciding justices that the standard of “reasonableness” at the time of the issuance of the pandemic orders must be viewed in light of changed circumstances. 

Dissenting Judge Park offered that the deciding judges have ruled based on a skewed perception of the zones.  The zone restrictions are not neutral.  Within zones only religious institutions remain restricted while “essential” operations are not.  

The measures not only specifically single out religious entities for special treatment but they also impose burdens that are substantially heavier than those imposed on other entities, in violation of the Free Exercise Clause.

The overtly different treatment of religious groups with an unmistakably disparate impact on these groups cannot be other than intentional. This is supported by the governor’s threat to close Orthodox Jewish institutions should they refuse to comply.

The dissent rejected the Governor’s argument that only rational basis review is needed as in the Governor’s view religious groups are treated more rather than less favorably than others,

The Governor’s position concedes non-neutrality, the dissenting judge observed. 

In the dissent’s view, the characterization of businesses as ‘essential’ and religious entities as ‘inessential’ facially targets religion.  Strict scrutiny is required as more than incidental burdens are evident.

The recent Supreme Court summary decision concerning California’s pandemic measures is not precedent, the dissent stated, because such orders are precedentail only where decided issues are identical.  The standards for relief in the Second Circuit and the temporal considerations are significantly different. 

New York has maintained the same restrictions since the inception of the pandemic notwithstanding marked reduction of disease.  

Jacobson v. Massachusetts, 197 U.s. 11 (19050 lacks the significance the Governor wishes it had, as Jacodbson was decided before the First Amendment was incorporated against the states and did not concern free exercise.   

Just as Jacobson does not support deference to indefinite exercise of emergency powers, but rather demands consideration of constitutional constraints, the facts of this case show that the absolute limits imposed on religious gatherings are not narrowly tailored.

The zone restrictions are the same — ten persons — for churches that can hold one thousand persons and those that can hold forty persons and the additional identified risks of singing or chanting make assumptions about religious gatherings not applicable to others.

The court has issued its briefing schedule for the merits with hearing to be scheduled as early as December 14, 2020. 

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020)

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