N.Y. Officials’ Endorsement of Anti-Racism Protests Leads to Successful Religious Freedom Challenge to Gathering Ban
From Judge Gary Sharpe’s opinion today in Soos v. Cuomo (N.D.N.Y.):
Pending is an application for preliminary injunctive relief filed by plaintiffs Reverend Steven Soos, Reverend Nicholas Stamos, Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld … seek an order restraining and enjoining defendants Andrew M. Cuomo, Governor of the State of New York; Letitia James, Attorney General of the State of New York; and Bill de Blasio, Mayor of the City of New York: (1) from enforcing any gathering limits to outdoor religious gatherings; and (2) from imposing any limitation on indoor gathering … for religious gatherings in parity with the 100% occupancy allowed for favored “essential businesses,” day camps and special education classes, or, alternatively, at least 50% occupancy in keeping with what is permitted for “non-essential” businesses and every other indoor activity allowed to continue under Phases Two and Three except religious activity, which alone is still arbitrarily confined to 25% occupancy.
The judge’s statement of the facts noted the government’s response to the anti-racism protests:
Mass race-related protests have erupted across the nation, including in the State of New York, in response to the death of African-American George Floyd on May 25, 2020. Protesters, sometimes in groups of thousands, have taken to the streets of New York City as well as other major cities in the State of New York. During this time, a “social media campaign” has encouraged theaters in New York, which are to be closed until “Phase Four” of New York’s reopening plan, to open their lobbies and restrooms for protesters.
[1.] [Response to the Protests by] Governor Cuomo
During a press conference held on June 1, 2020, when asked if he would “suggest people not go out and protest,” Governor Cuomo answered: “No, I think you can protest, but do it smartly and intelligently…. There were protests all across the country. Protest. Just be smart about it. With this virus, you can do many things now as long as you’re smart about it, right? You can reopen, you can go into a store and you can do a lot of things, just be smart.”
When asked what the difference is “between protesting and a business, say, in the city who wants to reopen smartly if it’s not at the phase yet that they’re technically allowed to,” Governor Cuomo answered: “Well, that’s where we’re at, but it has to be a business where you can be smart. Be smart, meaning socially distant. You don’t conduct business in a way where you have people within six feet. You have to wear the mask. You have to do the hand sanitizer. That’s where we’re going to be.”
During a press conference held on June 4, 2020, when asked about his reopening plans, and if there was a way to “allow high school graduation ceremonies with social distancing,” Governor Cuomo remarked: “Did you hear anything that we’ve been talking about for the past 96 days? … [Y]eah I know everybody wants to go to a high school graduation, I get it. Not if they’re going to die.” When asked how he is able to justify opening a patio for outside dining, but will not allow high school graduation ceremonies with social distancing, Governor Cuomo answered: “What difference does it make? … The issue is a public health issue and you don’t want people sick and dead. It’s about death, it’s about balancing the risk versus the reward, balancing the desires and wants versus the consequences.”
During this same press briefing, Governor Cuomo also stated, “I want to thank the protestors…. I stand with the protestors on the point that we need meaningful reform.”
When explaining the modification of non-essential gatherings for houses of worship to no greater than 25% of the indoor capacity of such location, provided in Order 202.38, Governor Cuomo explained, in part: “We are going to accelerate the opening of temples, mosques, [and] churches…. 25 percent occupancy is not as easy as 100 percent occupancy but 100 percent occupancy is a mass gathering and you really can’t do social distancing.” He further advised New Yorkers to “[b]e smart. It does not mean you go to a temple or a mosque and you sit right next to a person. You have to socially distance.”
[2.] [Response to Earlier Gatherings and Then to the Protests by] Mayor de Blasio
On April 28, Mayor de Blasio appeared in Williamsburg at a Jewish funeral gathering, which was dispersed by the New York Police Department (NYPD). Via Twitter, Mayor de Blasio wrote: “Som
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