State can enforce church limits for now

Bishop Nicholas DiMarzio

A federal court judge has ruled that New York State can continue to enforce capacity limits on houses of worship in COVID-19 hot zones while a lawsuit filed by the Diocese of Brooklyn and Queens plays out in court.

U.S. District Judge Eric Komitee last Friday, writing in the matter of Roman Catholic Diocese of Brooklyn and Queens v. Cuomo, denied a request from the diocese for a temporary retraining order and a preliminary injunction against enforcement, but did write that the diocese may reapply for an injunction as the record may be developed more fully.

Cuomo on Oct. 5 issued an executive order establishing color-coded zones in the city based on resurgences of positive tests for COVID-19, with red sectors having the harshest restrictions on schools, businesses and houses of worship.

One such zone exists in Central Queens, including portions of Rego Park, Forest Hills,  Kew Gardens and Kew Gardens Hills, and another in the Rockaways. Houses of worship in the zones are limited to 25 percent capacity or 10 people. Cuomo and city officials have pointed out that the red zones are centered around Orthodox Jewish communities.

Bishop Nicholas DiMarzio said in a statement issued Saturday that he is disappointed, but expects to prevail when the case is decided.

“We are seeking what is just,” DiMarzio said. “And we have kept parishioners safe and will continue to do so. Thus, there is no reason for this latest interference with our First Amendment right to celebrate Mass together, so we will continue to press the courts and our elected officials to end it as soon as possible.

“We are left with no choice but, for now, to abide by the new restrictions that limit Mass attendance to 10 people in the red zones and 25 in the orange zones. But we will continue to fight to vindicate our fundamental constitutional rights, and we will continue to be a model for safety in our religious community. And by doing right and being right, we will prevail.”

Komitee, citing U.S. Supreme Court precedents in his six-page ruling, wrote that “the right to freely exercise one’s religion does not exempt worshipers from compliance with ‘neutral, generally applicable regulatory law[s].’”

On the other hand, where laws single out acts of worship for “distinctive treatment,” courts must apply “the most rigorous of scrutiny.”

“When the government makes a value judgment in favor of secular motivations but not religious motivations, the government’s actions must survive heightened scrutiny.”

Komitee said the case comes down to whether the executive order is a neutral law that “incidentally burdens religion,” or one where religious worship “was being singled out for disfavored treatment.”

The judge wrote that Cuomo’s order “explicitly” regulates houses of worship and  “applies a capacity limit specifically to them ... There are entities treated better than religious institutions in the ‘red zone’ — namely, entities deemed ‘essential businesses’ — but other entities treated more restrictively, such as restaurants and even schools, which are closed entirely ...”

Komitee also cites an Oct. 9 interview with CNN in which Cuomo said “[T]he cluster is a predominantly ultra-Orthodox [Hasidic] community ... [T]he issue is with that ultra-Orthodox community.”

“[The diocese] appears to have been swept up in that effort despite having been mostly spared, so far at least, from the problem at hand.”

But citing the 1905 ruling in Jacobson v. Massachusetts, Komitee wrote that “[A] community has the right to protect itself against an epidemic of disease which threatens its members.” He also quoted U.S. Chief Justice John Roberts’ citation of “Jacobson” earlier this year in a ruling on a California case.

“The ‘Constitution principally entrusts the safety and health of the people to the politically accountable officials of the States to guard and protect,’” Roberts wrote.

“And given the severity and complexity of the pandemic,” Komitee wrote, “it cannot be said, on this record, that the balance of equities favors the Plaintiff.”

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