COVID-19 Lockdowns in New York: A Matter of Religious Freedom?
On Oct. 7, 2020, Harold Tischler, an Orthodox Jewish activist was arrested and charged with inciting a riot and the unlawful imprisonment of Jacob Korbluh, a journalist, during a protest in Borough Park, Brooklyn. Tischler, an activist, radio talk show host and candidate for Brooklyn City Council is known for speaking out against the COVID-19 restrictions placed on Orthodox Jewish communities in New York.1 2
Korbluh claims that he was unlawfully imprisoned during the protest when he was chased down the street, encircled by Tischler and kicked by the crowd.3 Tischler alleges that Korbluh harassed him the night before the protest.4
Governor Cuomo said that protestors demonstrating against COVID-19 lockdown measures should be arrested and prosecuted for their “criminal behavior.”5 Tischler, who agreed to turn himself into police on Monday after receiving a phone call from the NYPD, was arrested Sunday night.6
Cuomo’s Lockdown Order Goes Into Effect on Jewish Holiday
Tischler’s arrest was preceded by a protest against the COVID-19 lockdown restrictions imposed by Governor Cuomo’s Executive Order (Order), which went into effect Oct. 9, the same day many Jewish communities would typically gather together to celebrate the Jewish holidays, Shemini Atzeret and Simchat Torah. Cuomo’s Order closed schools, nonessential businesses and restricts non-essential gatherings to a maximum of 10 people, including those in Jewish temples of worship in parts of Brooklyn, Queens, Orange and Rockland counties and a section of Binghamptom.7
The governor’s most recent plan divided the state into red, orange or yellow zones based on the number of positive tests for SARS CoV-2. Houses of worship in the red zone are limited to 25 percent capacity or a maximum of 10 people, those in the orange zone are capped at 33 percent capacity or 25 people and those in the yellow zone are permitted to have 50 percent capacity. Schools in the red and orange zones are shut down, while those in the yellow zone require weekly testing of students and teachers.8 The red zone with the strictest regulations are in neighborhoods that are home to predominately Orthodox Jewish communities.9
Cuomo Targets Orthodox Jews for Strictest Lockdown Measures
Cuomo did not deny that the Orthodox Jewish Community was targeted by his Executive Order. “We’re now having issues with the Orthodox Jewish community in New York where, because of their religious practices etc, we’re seeing a spread.”10 Showing a picture of an Orthodox Jewish prayer service, Cuomo explained, “This is about mass gatherings and one of the prime places of mass gatherings are houses of worship. That is the truth.”11
Governor Cuomo’s Order is punitive, imposing a fine of up to $15,000 on anyone who organizes a mass gathering. To date, five Orthodox Jewish institutions have been fined $15,000.12 The New York State Department of Health and Governor Cuomo threatened local governments and schools in the red and orange zones that they would lose state funding if they failed to close schools and limit the size of gatherings.13 Cuomo warned:
I have to say to the Orthodox community tomorrow, ‘If you’re not willing to live with these rules, then I’m going to close the synagogues.14
Governor Cuomo is Sued for Violating U.S. Constitution’s Free Exercise Clause
In response to New York State’s latest restrictions, an Orthodox Jewish organization, Agudath Israel of America, filed a lawsuit against Governor Cuomo seeking a temporary restraining order (TRO) to prevent the state from restricting attendance at houses of worship in certain areas of the state.15 The Plaintiffs allege that Cuomo’s Executive Order violates the Free Exercise Clause of the U.S. Constitution by preventing the practice of their religion and ability to provide a religious upbringing for their families. The Roman Catholic Diocese of Brooklyn filed a similar lawsuit against Cuomo.
The Free Exercise Clause protects the right of Americans to accept and practice any religion free from government interference without due process of law.16 A law violates the Free Exercise Clause when it restricts one’s ability to practice their religion and is not neutral, meaning it does not apply to all people regardless of their religious beliefs or practices.17 A law is not neutral if it targets religious but not secular practices or if it is neutral on its face but restricts religiously motivated behavior.
Laws that are not neutral and restrict religious practices are subject to strict scrutiny in order to be upheld. The U.S. Supreme Court stated,
To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “interests of the highest order,” and must be narrowly tailored in pursuit of those interests… A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.18
The Complaint points out that by suddenly limiting the number of worshippers in synagogues to only 10 people 48 hours before the start of Jewish holidays, Cuomo not only “explicitly targeted the Orthodox Jewish Community,” but rendered it impossible for tens of thousands of Orthodox Jews to remain faithful to their religious practices and simultaneously comply with the Executive Order.19
The Complaint further states that Governor Cuomo, in his own words, specifically targeted religious institutions with the latest Order and that the restrictions are discriminatory because they do not apply to “essential” businesses nor “essential” gatherings, without defining what constitutes an “essential” gathering.20 Therefore, religiously motivated behavior is restricted, but secular activity may not be restricted in the same manner.
While the state can generally restrict gatherings when necessary to protect public health, if it only restricts certain activities, those restrictions must be truly nondiscriminatory in order to not violate the Free Exercise Clause. Because some mass gatherings are deemed essential and permitted under the Order, but all religious gatherings are restricted, the state must have a compelling justification for this distinction or the Order could be considered discriminatory.21
Many synagogues are large and limiting the capacity to 10 people for all houses of worship despite their size seems excessive and arbitrary. The executive vice president of Agudath Israel of America, Rabbi Zwiebel stated,
Social distancing, masking, and all health precautions must, of course, be observed. However, we think that it is possible to stay safe and at the same time have more than ten people in a Shul building that is meant to hold hundreds.22
The Federal Court Decision: A “Crushing Blow to Religious Freedom”
On Oct. 9, Federal Judge Kiyo Matsumato, of the U.S. Eastern District of New York court in Brooklyn denied the Plaintiff’s request for an emergency restraining order delivering what Plaintiff Agudath deemed a “crushing blow to religious freedom.”23
The judge wrote,
Plaintiffs failed to show, among other things, a likelihood of success on the merits of their claim that [Cuomo’s executive order] is otherwise unconstitutional or violates the free exercise clause.24
On the same day, Federal Judge Eric Komitee denied a TRO to the Diocese of Brooklyn in a similar lawsuit. Judge Komitee made it clear that Governor Cuomo’s Executive Order was aimed at the Orthodox Jewish synagogues in particular when he wrote,
This Emergency Order, as noted above, contains provision made expressly to houses of worship. Second, the Governor of New York made remarkably clear that this Order was intended to target a different set of religious institutions. See “Governor Cuomo is a Guest on CNN Newsroom with Poppy Harlow and Jimmy Sciutto,” October 9, 2020… “[T]he cluster is a predominantly ultra-Orthodox (Hasidic) community…[T]he issue is with that ultra-Orthodox community.” 25
Despite the mounting evidence that the Order was geared towards and motivated by the Orthodox Jewish community, Governor Cuomo denied that this was a matter of religious freedom.26
Agudath Israel has filed an appeal and a hearing date has been set for Nov. 3, 2020.27
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