Worship gatherings will not be restricted in the name of Public Health
Updated: Jul 6
Following Governor Cuomo's executive orders restricting public gatherings and limiting indoors occupation to prevent the spread of the COVID19 virus, representatives of the Catholic and the Jewish faith challenged the executive orders' validity as contrary to the Free Exercise Clause of the First Amendment, the First Amendment rights of speech, assembly, and expressive association, and the Equal Protection Clause of the Fourteenth Amendment.
On June 10, 2020, the plaintiffs filed a lawsuit to enjoin the enforcement of the executive orders issued by Andrew Cuomo, specifically, those that prohibit worship gatherings. In a 38-page decision the United States Court for the Northern District of New York enjoined the enforcement of any indoor gathering limitations against religious associations greater than those imposed for Phase 2 industries, and enjoined the enforcement of any limitations for outdoor worship gatherings. However, the enforcement of the social distancing rules remained enforceable.
According to the plaintiffs, the executive orders have been enforced inconsistently against worship gatherings. While mass protests were not only allowed but encouraged, and restrictions on secular gatherings were relaxed, religious congregations were subjected to unacceptable exceptions.
The restrictions analyzed by the court were the following:
A 25% indoor capacity limitation for Phases 2 and 3 locations;
A twenty-five-person outdoor gathering limit in Phase 3 locations; and
A ten-person outdoor gathering limit in Phase 1 and 2 locations.
To proceed with its analysis, the court applied a strict scrutiny. Usually, laws that are general are analyzed under a rational basis scrutiny. This means, that the statute or law at issue is valid as long as it is supported by a legitimate state interest, and there is a rational connection between the law's means and goals. In this case, the rational basis underlying Governor Cuomo's executive orders was public health.
However, when a law is not neutral on its face, or when the law as enforced creates individualized exceptions it may be subjected to a strict scrutiny. In other words, a general law that is not a applied in the same terms to all can be the subject of a strict analysis. To this respect the court expressed:
"Along these lines, when the challenged law does not carve out an exemption on its face, the history of enforcement is relevant to the existence of an exemption." 
With respect to the 25% indoor capacity limitation, the court explained that, on its face, the limitation applied only to houses of worship. No other secular business or entity, except for those closed until Phase 4, were subjected to the 25% capacity limitation. The court explained:
"For example, offices, retail stores that are not inside of shopping malls, and salons were permitted to open at 50% capacity beginning in Phase 2. To a greater or lesser degree, the Phase 2 industries involve the congregation of people for a length of time. And restaurants in Phase 3 locations are permitted to open at 50% capacity indoors." 
With respect to the outdoor limitations, the court explained that, as a result of the public manifestations made by Andrew Cuomo and Bill de Blasio regarding the mass protests that took place in June, a de facto exemption in detriment of the plaintiffs had been created. The court explained:
"Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules. They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment." 
After the decision was issued the Justice Department manifested its support to the decision and called it a "win for religious freedom and the civil liberties of New Yorkers." 
This decision sets a clear precedent, despite the crisis it is not acceptable to consider public health protection as free pass to obstruct others' right, or to ignore the fact that the same crisis has many faces, many of them sometimes ignored.
 Cuomo, de Blasio wrong to limit worship services, condone mass protests: federal judge. Fox News. Available at: https://www.foxnews.com/us/new-york-coronavirus-reopen-plan-church-synagogue.
 Onder joins lawsuit against New York officials over religious gatherings. The Missouri Times. Available at: https://themissouritimes.com/onder-joins-lawsuit-against-new-york-officials-over-religious-gatherings/
Giselle Ayala Mateus is a Colombian lawyer qualified to practice law in the United States and Colombia. Her practices focuses on Immigration, Intellectual Property, Entertainment, Art, and Non-For-Profit Law.