Victory for Religious Freedom in New York

(January 8, 2021 – New York, New York) Religious freedom received validation this week from the United States Court of Appeals for the Second Circuit in the case of two Catholic priests, two Catholic school students, and four Orthodox Jewish individuals who are suing New York Governor Andrew Cuomo. Thomas More Society attorneys are representing these people of faith in a lawsuit that alleges that the governor is violating constitutionally guaranteed rights with his draconian restrictions on religious services and activities.

Communist-style “Cluster Action Initiative” in New York Challenged

The challenged gubernatorial policy, dubbed the “Cluster Action Initiative,” was issued on October 6, 2020, as part of New York’s increasing and untenable restrictions that purport to curb the spread of COVID-19.

This regime virtually shut down churches and synagogues in newly created “Red Zones” in New York City and other locales. Cuomo also completely closed religious schools in both the “Red Zones” and in the newly designated “Orange Zones.”

The most restrictive “Red Zones” single out “houses of worship” and limit houses of worship to 25% percent capacity, but no more than ten people. “Orange Zones” limit “houses of worship” to 33% of capacity but no more than 25 people, and the also newly defined “Yellow Zones” limit “houses of worship” to 50% of capacity.

On Thanksgiving Eve, the Supreme Court, in challenges to the “Cluster Initiative” by the Diocese of Brooklyn and Agudath Israel, issued an injunction prohibiting enforcement of the 10- and 25-person caps during an appeal pending in the Second Circuit, and also vacated district court decisions denying relief from the caps and the percentage limits, ordering the lower courts to reconsider their refusal of an injunction in light of the Supreme Court’s decision in Brooklyn Diocese.

On remand, the Second Circuit went even further, ordering the district court to issue a preliminary injunction against the 10- and 25-person caps and to reconsider its refusal to grant relief to Agudath Israel from the percentage limits as well.


Second Circuit victory reverses course

Following these developments, Thomas More attorneys won their own victory in the Second Circuit, in which they had filed an emergency motion to prohibit enforcement of both the 10- and 25-person caps and the percentage limitations after a district court had upheld them.

“What happened was unusual,” explained attorney Christopher Ferrara, Thomas More Society Special Counsel. “On January 5, the Second Circuit used our emergency motion as a vehicle to vacate the district court’s October decision, which depended on near-total deference to government-imposed restrictions during COVID-19, including both the in-person caps and the percentage limits in the ‘Cluster Initiative.””

“Now the court will be bound to prohibit enforcement of the 10- and 25-person limits also to apply ‘strict scrutiny’ to the 25% and 33% limits as applied to our clients, a standard that is almost never met,” Ferrara added. “Because the ‘Cluster Initiative’ allows retail stores and offices to be open at 50% capacity and factories, homeless shelters, manufacturers, and more to operate at 100% capacity, the discrimination against houses of worship is obvious.”


November U.S. Supreme Court Brooklyn Diocese decision set precedent

“As the Supreme Court made clear in November,” said Ferrara, referring to the decision in Brooklyn Diocese, “COVID-19 does not justify religious discrimination. The Second Circuit’s decision sends the case back to the lower court to vindicate that fundamental constitutional principle and uphold religious freedom.”

Read the Order from United States Court of Appeals for the Second Circuit, issued January 5, 2021, under Circuit Judges Guido Calabresi, Reena Raggi, and Denny Chin, in the matter of Steven Soos, et al. v. Andrew M. Cuomo et al. denying the Motion for Injunction Pending Appeal and vacating the district court’s denial of a preliminary injunction in light of the Second Circuit’s December 28 decision in Agudath Israel of

America v. Cuomo, here [].

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