Do Cuomo’s coronavirus shutdown orders trample the First Amendment?

Gov. Andrew Cuomo has faced many lawsuits in the past half-year over coronavirus restrictions and shutdown orders – a record number, according to at least one tally – and it doesn’t look like they’ll slow down anytime soon.

On Thursday, Agudath Israel of America – a grassroots Orthodox Jewish organization – and the Roman Catholic Diocese of Brooklyn each filed separate lawsuits against new shutdown orders that place capacity limits on houses of worship in COVID-19 hot spots in parts of Brooklyn and Queens, areas which include large ultra-Orthodox Jewish communities. In so-called “red zones” – the geographic areas with the strictest shutdown orders – houses of worship are limited to 25% capacity or a maximum of 10 people, while schools, non-essential businesses and other types of gatherings are shut down and prohibited entirely. 

The shutdown, which went into effect on Thursday, will last at least 14 days, and follows a surge in positive COVID-19 cases in 20 zip codes across Brooklyn, Queens and Rockland counties, where positive test rates are as high as 16%. 

In press conferences this week. Cuomo has pointed to houses of worship in particular as a source of disease spread. And while the new shutdown orders are based on data from the state Health Department that show clusters of high positive cases – and apply to all non-essential businesses in those geographic zones – it’s no secret that the orders will have an especially large impact on largely Orthodox neighborhoods such as Borough Park and Midwood. That has resulted in swift backlash from the ultra-Orthodox Jewish community. In addition to these lawsuits, the new orders have prompted protests in Borough Park, where some protesters burned face masks. On Wednesday night, an Orthodox Jewish reporter was attacked by a crowd of protesters. 

While a Brooklyn law firm has also sued to block the order and other kinds of lawsuits may be imminent, the two lawsuits from Agudath Israel and the Roman Catholic Diocese of Brooklyn draw attention to an ongoing question of how to regulate houses of worship in an effort to stem the spread of COVID-19 without infringing on people’s religious liberty.

Michael Helfand, a professor and expert on religious liberty at Pepperdine University’s Caruso School of Law, expressed doubt that the new lawsuits would succeed in blocking the orders, but said that the arguments were “non-frivolous” nonetheless. “Generally, in order to avoid constitutional scrutiny, you need to have laws that apply neutrally and across the board. And here, you have specific kinds of rules expressly for houses of worship,” Helfand said. “So it’s a non-frivolous suit for someone to say, ‘You’re creating a specific set of rules just for us, and that’s, in principle, not what the First Amendment allows.’”

Helfand said that while the First Amendment says you can regulate houses of worship as long they’re treated like other similarly situated institutions, it’s a fraught task to figure out what it means to be a similarly situated institution. Richard Foltin, a religious freedom fellow with the Freedom Forum, a First Amendment-focused nonprofit organization, added, “There’s a powerful constitutional imperative not to treat religious practice and religious communities, religious activities less favorably than comparable activities. The rub is in the question of what’s a comparable activity.”

In June, a federal judge blocked the state from enforcing some shutdown restrictions on religious gatherings, finding that New York couldn’t impose stricter regulations on outdoor religious gatherings than it was imposing on outdoor protests at the time, and couldn’t impose stricter regulations on indoor religious gatherings than it planned to impose on other industries opening at the time, including offices and retail. Two similar cases in Nevada and California regarding regulating houses of worship differently than other types of businesses also reached the Supreme Court this summer, but the court rejected requests to block those states’ restrictions.

Unlike New York’s earlier shutdown orders that a judge found fault with, however, these new ones appear to be more lenient on houses of worship than on other types of businesses. In red zones, for example, schools and non-essential businesses are closed completely, while houses of worship are allowed to welcome 10 people at most. Nelson Tebbe, a constitutional law professor at Cornell Law School, said that fact could help the order stand up to the argument that houses of worship are being treated unfairly compared to other institutions. “In this situation in New York, it's very hard to see how houses of worship are being treated worse than other gathering places,” Tebbe said. Even so, essential businesses like grocery stores are allowed to remain open. 

In the new lawsuits, religious leaders argue that the order violates their First Amendment right to the free exercise of religion. In their lawsuit, the Diocese of Brooklyn says that the executive order is being imposed arbitrarily, without evidence that churches have been linked to an uptick in cases. And in its own suit, Agudath Israel argues that while the new rules apply to all religions, they will have a disproportionate impact on Orthodox Jews. While other religious observers might be able to drive outside of the zones in shutdown to attend a service, Orthodox Jews who don’t drive on the Sabbath or holidays won’t have the same option. 

Helfand expressed doubt that these arguments would add much to their case. “Once you concede the point that these regulations are a reasonable way to deal with an uptick in cases in particular geographic areas, it strikes me as hard to say that given the theological idiosyncrasies of each faith community, that kind of disparate impact should generate a constitutional problem,” he said.

Foltin said that while restrictions on religious gatherings do have a real effect on how Sabbath observers are able to attend service, he suggested the argument in this case still may not convince a court. “I think that it’s not an irrelevant consideration, but it only goes so far,” Foltin said. “If there’s a public health imperative that is based on avoiding large groups gathering, at the end of the day, that may well prevail.”

In First Amendment cases, one can argue that an order like this targets a particular religion, even if the rules apply to all religious groups. “Another way you could challenge an order like this might be to say that it was animated by some kind of intent to discriminate against Hasidic Jews or other religious groups, even if the order is on its face not treating them worse than other communities, not treating their gathering places worse than other gathering places,” Tebbe said said on Wednesday, before these lawsuits were filed. In Agudath’s lawsuit, the group says that the state has explicitly targeted the Orthodox community and that the restrictions make it impossible for Orthodox Jews to comply with their religious obligations and the order.

Josh Blackman, a professor at the South Texas College of Law, Houston, and a member of the Jewish Coalition for Religious Liberty, pointed to Gov. Andrew Cuomo’s repeated comments about the Orthodox Jewish community as something that could make the order vulnerable to that kind of challenge. “I do think that the governor’s order is susceptible to legal challenge,” he said on Wednesday. “During the press conference, over and over again, he kept speaking about the Jews, the Jews, the Jews.” 

A spokesperson for the governor declined to comment but pointed to examples of Cuomo including multiple faith groups – as well as schools – in speaking about the order. “I know that I don't have a political issue doing the enforcement because I do believe it's the best thing for the Orthodox community. And I do believe the best thing for the Catholic community. And for the Protestant community. And for every school, and for every child, because we are saving lives,” Cuomo said at a press conference this week. 

Asked about the lawsuits on Friday, Cuomo said the rise in cases in these areas is mostly linked to the ultra-Orthodox community. “The cluster is a predominantly ultra-Orthodox cluster,” he said during an interview on CNN. “The Catholic schools are closed because they happen to be in that cluster. The issue is with that ultra-Orthodox community. This is not a matter about religious freedom.”

Helfand said he thought the shutdown orders would stand up to the First Amendment challenges, but he suggested it was strange for the state to create more stringent regulations while Cuomo has attributed the uptick in cases in these parts of Brooklyn and Queens to a lack of enforcement of the existing rules by local authorities. “If you think the problem is enforcement of the rules, then it is odd to take the approach that what we should do is increase the amount of regulation,” Helfand said. “So to the extent the court wants to assess whether this is the least restrictive way to address this compelling government interest, it might be curious why the state is focused on increased regulation as opposed to increased enforcement and increased penalties.”

At a press conference on Tuesday, Cuomo seemed to touch on this matter. “The last numbers in houses of worship were violated,” he said. “You just have to make sure you're not coming up with a new number that's going to be violated again.”

Religious leaders and everyone else in the affected zones in Brooklyn and Queens may not have to wait long for an answer on whether these new rules can withstand religious liberty scrutiny. A spokesperson for Agudath Israel said that a hearing on the organization’s lawsuit is scheduled for Friday at 1:30 p.m.