Agudath Israel is disappointed that the U.S. Court of Appeals did not grant a preliminary injunction preventing aspects of New York Governor Andrew Cuomo’s lockdown restrictions against shuls. By 2-1 vote the majority decided, with little explanation, that the very “high bar” calling for “the extraordinary remedy” of an injunction of an executive order during a pandemic simply could not be met.
In a scathing dissent, Judge Michael H. Park wrote that “in the same zones, pet shops, liquor stores, and other businesses the Governor considers “essential” remain open, free from any capacity limits. By singling out “houses of worship” for unfavorable treatment, the executive order specifically and intentionally burdens the free exercise of religion in violation of the First Amendment.”
He added, “the Governor’s public statements confirm that he intended to target the free exercise of religion.” Moreover, Judge Park was highly critical of the fixed capacity limits: “First, the fixed capacity limits do not account in any way for the sizes of houses of worship in red and orange zones… Such a blunderbuss approach is plainly not the “least restrictive means” of achieving the State’s public safety goal.”
But more important than a court victory requesting such extraordinary relief, is what occurred in the interim. On the day before the appeal hearing, Governor Cuomo rolled out a new program allowing all schools to open, providing testing is performed. A few days later, Brooklyn red zones were reduced by 50% and Rockland and Orange County areas were eased. Earlier today, all of Brooklyn was released from red zone status. Finally, this morning, reporting of positivity rates by zip code has resumed on the NYC site, a measure of transparency that Agudath Israel and others have repeatedly requested.
Agudath Israel credits the work of many askonim who, together with the organization, spearheaded testing initiatives and pressed the Governor for change. Agudath Israel thanks the Governor for his receptivity to the community’s pleas.
Agudath Israel also looks forward to working with the Governor’s office to balance keeping Orthodox Jewish communities safe while respecting and protecting all freedoms, and especially religious freedoms, a freedom Agudath Israel will never waver defending.
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One Response
While I applaud the Agudah and askonim in their work, this latest maneuvering seems to be, at most, a tactical retreat by the Governor, not at all a loss for him. So I don’t understand the seeming celebratory tone in this article.
The Governor still holds the keys to our schools, by imposing his requirement of weekly random testing or else he shuts down the school. This is an outrage.
He also still holds the keys to our shuls, with his continued ability to again declare any area a “red zone” or other colored zone. Again, this is an outrage.
Until this constraint of colored zones is entirely removed, and our shuls and schools are free to remain open without his intrusion and the persistent threat of his at-will ability to shut them down, the work of the askanim is far from over.
At best, the askonim have won a minor battle. That’s at best. Likely, however, as mentioned, they have merely witnessed some tactical maneuvering. The war will indeed have been won when our shuls and schools will be free to remain open as before COVID.