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Court upholds religious challenges to Cuomo's pandemic limits

ALBANY — A federal appeals court has ruled against New York State's attendance restrictions at houses of worship to curb the spread of the coronavirus.

The U.S. Court of Appeals for the Second Circuit ruled Monday that Gov. Andrew M. Cuomo's order limiting attendance at churches and synagogues in pandemic hot spots "discriminates against religion on its face."

"Even in a pandemic, the Constitution cannot be put away and forgotten," a three-judge panel of Republican-appointees wrote.

The court said it wasn’t that government can’t regulate houses of worships — they are subject to fire-code capacity limits, for instance — but Cuomo had an obligation to take the least restrictive means possible and he didn’t.

The ruling is a victory for the Roman Catholic Church and Orthodox Jewish synagogues that had sued the governor over the limits.

It also comes one month after the U.S. Supreme Court issued an injunction against the limits ordered by Cuomo, pending the appeal of the case.

Cuomo has called the lawsuit "irrelevant" because restrictions in the specific hot spots in Brooklyn had ended already — although it remains to be seen if rising caseloads could prompt another round of limits. He didn’t immediately comment on Tuesday.

The governor had said the Supreme Court — with a majority of Republican appointees — was expressing its "philosophy and politics" in issuing the November injunction.

The appeals court ruling handed down Monday was authored by Debra Ann Livingston, an appointee of President George W. Bush, and Michael Park and Steven Menashi, appointees of President Donald Trump.

The three judges ordered a federal district court to issue a preliminary injunction prohibiting the state from enforcing 10- and 25-person limits at houses of worship in so-called red and orange zones — areas in New York with the highest test-positivity rates for the virus.

The judges acknowledged that "stemming the spread of COVID-19 is unquestionably a compelling interest." But they said the legal issue was whether the restrictions were "narrowly tailored and use the least restrictive means available to achieve that interest."

They concluded: "But we grant no special deference to the executive when the exercise of emergency powers infringes on constitutional rights."

Agudath Israel of America, one of the plaintiffs, called the ruling a "major victory for religious freedom."

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