Sign saying no services due to coronavirus is posted on...

Sign saying no services due to coronavirus is posted on the front door of Saint Agnes Roman Catholic Cathedral in Rockville Centre on May 24. Credit: Debbie Egan-Chin

A federal judge ruled on Friday that New York State is violating the First Amendment by restricting religious gatherings during the coronavirus pandemic while simultaneously allowing both much larger protests sparked by the death of George Floyd and the opening of other activities and businesses.

Senior U.S. District Judge Gary L. Sharpe, who was appointed by President George W. Bush and sits in Albany, issued a preliminary injunction that voids parts of an executive order issued by Gov. Andrew M. Cuomo three months ago that included a fine against anyone who gathered in excess of set limits.

Included in the injunction Sharpe issued Friday is a prohibition on “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” regarding religious gatherings. 

“In the absence of an injunction,” he wrote, “plaintiffs’ religious activities will be burdened and continue to be treated less favorably than comparable secular activities.”

The ruling technically applies just to the five plaintiffs — two Catholic priests upstate and three Orthodox Jews in Brooklyn — and grants only a preliminary injunction. But it has broader implications statewide.

The government will often grant the benefits of such rulings beyond the named plaintiffs to anyone who’s similarly situated — in this case, anyone who wants to practice or study religion in a group — to avoid facing future litigation, according to Eugene Volokh, a UCLA law professor and expert on the First Amendment. And, he said, preliminary injunctions are granted in cases like this only when the court believes a particular side is likely, ultimately, to succeed. He said the precedent set by Sharpe’s ruling could be “tremendously significant” if affirmed on appeal.

Volokh said that although the ruling does not explicitly give a new capacity limit to houses of worship, it would appear to be the same 50% that now applies to other “non-essential” organizations as defined by the state rules allowing 50% at places like offices, barbers and stores.

Christopher Ferrara, one of the plaintiffs’ attorneys, said that his clients can now begin worship at up to 50% capacity, including the Jewish Sabbath that begins Friday night and continues to Saturday night, and Sunday Mass for the priests and their congregations, so long as social distancing rules are obeyed.

“No longer will religion be in its own uniquely constricted category,” he said, adding: “The outdoor gatherings are now without numeral limitation, given the George Floyd protests, the Juneteenth celebrations and the Black Lives Matter demonstrations, all of which have been approved by Governor Cuomo and Mayor de Blasio, and the only limitation that remains is that of social distancing.” 

The state banned public gatherings March 22, relaxing the rules two months later to allow for 10 or fewer people, with a mandate that people wear face coverings and maintain social distance. Cuomo said earlier this month that in regions in Phase 2 of the state’s reopening plan, houses of worship could open with 25% occupancy.

That other venues such as stores are allowed to reach 50% capacity — while religious gatherings are more strictly limited — “demonstrate[s] that the 25% indoor capacity limitation on houses of worship is underinclusive,” the judge wrote. 

In addition to ordering outdoor restrictions loosened, the judge barred the state and city “from enforcing any indoor gathering limitations against plaintiffs greater than imposed” during the state’s phased reopening of certain industries, “provided that plaintiffs follow social distancing requirements.”

The case, Rev. Steven Soos et al. v. Cuomo et al., was filed June 10 in the U.S. District Court for the Northern District of New York. At issue is whether the state and New York City are practicing a double standard that violates the U.S. Constitution — specifically the First Amendment’s free exercise clause and the Fourteenth Amendment’s equal protection guarantees — state law, or both, as the plaintiffs allege.

Although the judge issued only a preliminary injunction, he said that the “plaintiffs have demonstrated a likelihood of success on the merits with respect to their free exercise claim.”

The plaintiffs are the Revs. Steven Soos and Nicholas Stamos, both upstate priests; and Daniel Schonbrun, Elchanan Perr and Mayer Mayerfeld, who are Orthodox Jews from Brooklyn.

The decision can be appealed to the U.S. Court of Appeals for the Second Circuit, which is based in Manhattan.

Cuomo, state Attorney General Letitia James and New York City Mayor Bill de Blasio are named as defendants.

Rich Azzopardi, a spokesman for Cuomo, and Nicholas Paolucci, a spokesman for de Blasio's Law Department, each said the decision was being reviewed, and Delaney Kempner, a James spokeswoman, referred inquiries to the mayor and governor.

Cuomo, James and de Blasio have spoken publicly in favor of the importance of the protests, which came after the May 25 death of Floyd, who was recorded dying while a Minnesota cop put his knee on Floyd’s neck. 

Except sometimes late at night or during the citywide curfew to curb looting, the Floyd protests in New York were generally not broken up. By contrast, the authorities have dispersed smaller religious gatherings, such as funerals, worship and study.

The judge sided with the argument by plaintiffs, backed by the Thomas More Society, a religious-liberty nonprofit based in Chicago, and rejected the argument that there needed to be a public safety exception “under dynamic and often fraught circumstances.” 

The judge wrote: “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. 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.”

Sharpe said that while he has “a firm understanding that the executive branch response to the pandemic has presented issues with a degree of complexity that is unrivaled in recent history, it is plain to this court that the broad limits of that executive latitude.”

“[I]t 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,” Sharpe wrote, “that is, until those decisions result in the curtailment of fundamental rights without compelling justification.”

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