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.