New York may no longer restrict religious gatherings to 25 percent capacity while other businesses can operate at 50 percent, according to a preliminary injunction issued by a federal judge on Friday. U.S. District Judge Gary Sharpe ruled that New York could not limit socially-distanced, outdoor religious services while it allowed outdoor graduation ceremonies in excess of 100 people.
Sharpe barred New York Gov. Andrew Cuomo, Attorney General Letitia James, and NYC Mayor Bill DeBlasio from enforcing any restrictions on houses of worship that are greater than restrictions on Phase Two businesses. Businesses on the Phase Two list, including barbershops, retail stores, and professional services, may operate at 50 percent capacity if they are social distancing. Houses of worship under Phase Two, however, were limited to 25 percent capacity by Cuomo’s Executive Order 202.38, in an apparently arbitrary restriction on religious freedom.
Catholic priests Steven Soos and Nicholas Stamos, along with Orthodox Jews Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld, filed for injunctive relief against the restrictions. For Soos and Stamos and their congregations in upstate New York, the restrictions kept parishioners from taking the sacraments of communion, a required ritual for adherents to the Catholic faith.
Schonbrun, Perr, and Mayerfeld attend synagogues in Brooklyn, New York. At Schonbrun’s synagogue in March, police arrived to break up an outdoor prayer gathering of eight people who were all at least 20 feet apart. Perr and Mayerfeld have also experienced hostility toward their religious gatherings. Perr was attending a socially-distanced funeral when police arrived and broke up the service, and Mayerfeld reported being harassed by his neighbors when he was driven to holding religious services in his own backyard.
On March 23, 2020, Cuomo banned “nonessential gatherings of individuals of any size for any reason,” including religious gatherings. Two months later, on May 21, he added a provision to allow socially-distanced religious gatherings of up to 10 people. Outdoor, drive-in services were also permitted, but congregants could not leave their cars.
At the end of May, Cuomo issued another executive order that allowed businesses on a list of “Phase Two” non-essential businesses to open, including retail shops, hair salons, professional services, real estate offices, car dealerships, and information technology companies. These businesses were welcome to operate at 50 percent capacity, according to guidance from the governor’s office.
Another week passed before Cuomo addressed houses of worship. On June 6, he permitted religious gatherings under Phase Two, but restricted them to 25 percent capacity, half that of stores and barbershops.
At the same time, Cuomo and de Blasio have encouraged the mass protests sweeping New York in the wake of George Floyd’s death. Answering a question about whether protests should be discouraged, Cuomo said, “No, I think you can protest…you can do many things now as long as you’re smart about it.” A few minutes later, he thanked protesters for their actions.
De Blasio went further, even speaking at a George Floyd protest without a mask. When asked about the plight of religious congregants who have been banned from gathering, he insisted “that is not the same question.”
De Blasio’s shows of support for mass protests “clearly undermine the legitimacy” of his reasons for restricting religious congregations, Sharpe said in the court order. “By acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment.” As a result, the restrictions on religious gatherings may no longer be enforced.
