From The Thomas More Society
New York Governor Andrew Cuomo is wrong to limit worship services yet condone mass protests, according to a federal judge. After telling Thomas More Society attorneys in a June 18, 2020 hearing that he was “troubled by” the government’s responses, Senior U.S. District Judge Gary L. Sharpe issued a preliminary injunction on June 26, 2020, prohibiting Governor Cuomo, his Attorney General Letitia James, and New York City Mayor Bill de Blasio from ordering or enforcing COVID-19 prompted restrictions on outdoor religious worship gatherings.
Thomas More Society Special Counsel Christopher Ferrara remarked, “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. 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. This decision is an important step toward inhibiting the suddenly emerging trend of exercising absolute monarchy on pretext of public health. What this kind of regime really meant in practice is freedom for me, but not for thee.”
Sharpe’s order noted that, “it is not the judiciary’s role to second guess the likes of Governor Cuomo or Mayor de Blasio when it comes to decisions they make in such troubling times, that is, until those decisions result in the curtailment of fundamental rights without compelling justification.”
In awarding the injunction, the court noted that “nonessential businesses” that enjoy a 50% capacity limitation are not justifiably different than houses of worship.
Sharpe remarked that offices, retails stores, salons, and restaurants – all now permitted to open at 50% capacity indoors – all involve the congregation of people for a length of time. He stated, “These secular businesses/activities threaten defendants’ interest in slowing the spread of COVID-19 to a similar or greater degree than those of plaintiffs’, and demonstrate that the 25% indoor capacity limitation on houses of worship is underinclusive and triggers strict scrutiny review.”
The judge pointed out, “Another case of individualized exemption seems even more obvious.” Governor Cuomo has now specifically authorized outdoor, in-person graduation ceremonies of no more than 150 people. This is an express exemption from the ten- or twenty-five-person outdoor limits that apply to other situations. Yet, “There 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.”
Sharpe took New York City to task, stating that de Blasio’s simultaneous pro-protest/anti-religious gathering messages “clearly undermine the legitimacy” of his argument that selective enforcement of the challenged laws with respect to mass race protests is a matter of public safety.
“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 Sharpe. “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.”
As a result of the federal order, Governor Cuomo, Attorney General James, and Mayor de Blasio are “enjoined and restrained from enforcing any indoor gathering limitations” against the involved houses of worship “greater than imposed for Phase 2 industries,” provided that participants follow the prescribed social distancing. They are also forbidden from “enforcing any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance.”
Cuomo, James, and de Blasio were sued by two Catholic priests from upstate New York and a trio of Orthodox Jewish congregants from Brooklyn for violations of their civil rights by prejudicial orders and selective enforcement. The federal lawsuit, filed June 10, 2020, in United States District Court for the Northern District of New York, charged the governor, attorney general, and mayor with violating the plaintiffs’ rights to free exercise of religion, freedom of speech, assembly and expressive association, and due process, under the First and Fourteenth Amendments to the U.S. Constitution. Governor Cuomo was also accused of violating New York state law and the New York State Constitution.
Ferrara explained the lawsuit: “In an unprecedented abuse of power, Governor Cuomo and Mayor de Blasio have exploited the COVID-19 pandemic to create, over the past three months, a veritable dictatorship by means of a complex web of executive orders. The orders have imposed and selectively enforced ‘social distancing’ under a ‘lockdown’ of virtually every aspect of life for New York state residents on the pretext of ‘public health,’ but with numerous exceptions. The permissible activities, not based on the science of viral contagion, but rather determined according to personal value judgments, have included mass demonstrations of thousands of people – gatherings of which the governor and mayor have approved and the mayor participated in. Cuomo and de Blasio, along with James, have enforced the gubernatorial ‘lockdown’ by threat of criminal prosecution and actual prosecution, including $1,000 fines for the recently created offense of violating Cuomo’s ‘Social Distancing Protocol’.”
Ferrara added, “These mass protest gatherings, taking place during the COVID-19 stay-at-home lockdown orders, have been not only allowed but praised by both the governor of New York and mayor of New York City, even though massive property damage and death have resulted. This, when the government’s primary purpose is to protect the people it governs.”
Read United States District Court for the Northern District of New York Judge Gary L. Sharpe’s Memorandum-Decision and Order, issued June 26, 2020, in response to the Thomas More Society’s complaint, filed on behalf of Rev. Steven Soos, Rev. Nicholas Stamos, Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld, in Rev. Steven Soos, et al v. Andrew M. Cuomo, et al, here.
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