A Black Lives Matter protest began at Washington Square Park...

A Black Lives Matter protest began at Washington Square Park and marched through the West Village Monday. Credit: Corey Sipkin

Three Orthodox Jews and two Catholic priests are suing to loosen New York State’s restrictions on religious gatherings, arguing that cracking down on worship during the pandemic while condoning and even encouraging mass demonstrations over George Floyd violates the U.S. Constitution.

The lawsuit, filed last Wednesday upstate at the U.S. District Court for the Northern District of New York, asks that Gov. Andrew M. Cuomo’s limits on religious gatherings be nullified or that they be allowed, even indoors, subject to the same crowd-size limits granted to the Floyd demonstrators during the coronavirus pandemic.

Named as defendants are Cuomo, State Attorney General Letitia James and Mayor Bill de Blasio. The three have spoken publicly in favor of the demonstrations' importance, which were catalyzed by the May 25 death of Floyd, who was recorded dying while a Minnesota cop put his knee on Floyd’s neck.

“In an unprecedented abuse of power, defendants have exploited the COVID-19 pandemic to create, over the past three months, a veritable dictatorship by means of a complex web of defendant Cuomo’s executive orders, by which defendants have imposed and selectively enforced ‘social distancing’ under a ‘lockdown,’” according to the suit, filed by the Thomas More Society, a religious-liberty nonprofit.

While the court declined to immediately suspend Cuomo’s order, there is a hearing scheduled Wednesday via Skype, according to online court records.

The suit says that the three officials have exploited “the pretext of ‘public health,’ but with numerous exceptions defendants deem permissible according to their value judgments, including mass demonstrations of thousands of people of which they approve. ” 

Cuomo’s office did not return a message seeking comment. James’ spokesman Fabien Levy declined to comment on the record, and de Blasio’s law department spokesman Nicholas Paolucci pointed to the city’s filing Monday opposing the suit.

The city government’s response argues that “public safety considerations surrounding recent protests in the City have led to a temporary relaxation in enforcement of the gathering limitation” and that “officials are addressing the ongoing public health crisis as it overlaps with the public safety concerns raised by the protests to the best of their ability, under dynamic and often fraught circumstances.”

The response rejects the claims of violations of the Constitution — the First Amendment’s free exercise clause and the Fourteenth Amendment’s equal protection guarantees — and says “the vast majority of religious services are held indoors while the protests occur outdoors,” where it’s believed coronavirus is less likely to be transmitted. Three of the plaintiffs live in Brooklyn, the response notes, where houses of worship “lack outdoor space, or outdoor space large enough for large groups of worshippers, let alone socially distant worshippers. ” 

 The suit quotes Cuomo and de Blasio speaking approvingly of the Floyd protests: On June 2, for example, de Blasio said: “400 years of American racism, I’m sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services.” 

And a plaintiffs’ filing Tuesday notes that an “Open Your Lobby” campaign involves “theaters, concert halls, and other similar entities across the state opening their lobbies to protestors to rest, charge phone batteries, snack, etc., without any limitations on gathering sizes, and with express instructions to not let police in.”

Eugene Volokh, a UCLA law professor and expert on the First Amendment, said the suit, while not “open and shut,” stands a better chance of success than most others over the past few months that challenged coronavirus restrictions on religious gatherings and failed.

“It’s not just, ‘oh, you’re treating food differently than religion, politics, socializing, everything else.’ Rather it’s that you’re treating an assembly for one kind of ideological purpose — to protest against police brutality — differently from an assembly for another kind of ideological purpose, to share the gospel and to worship God together.”

To the extent that the government is allowing demonstrations because its officials agree with the message, he said, “that is something that is quite clearly unconstitutional.”

As for the city’s argument that public safety compels an exception for demonstrations — which suggests that there could be greater harm to enforcing social distancing on demonstrators — Volokh said that while the courts are sensitive to that consideration, “if you give better treatment to protests because you’re concerned that some protesters will violently resist or at least resist arrest, then this will encourage more protesters to resist arrest.”

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