Court upholds Cuomo's executive order on Covid-19 restrictions

We are slowly but surely developing a body of case law on rights and responsibilities arising from the Covid-19 pandemic. When the government began limiting public behavior in Spring 2020, I wondered if anyone would sue over these measures that would clearly be unconstitutional in the absence of a serious public health emergency. People have sued, and these cases are now wending their way through the courts. In this case, the Second Circuit finds that Gov. Cuomo had lawfully restricted public assemblies, rejecting the religious freedom objections raised by the plaintiffs. 

The case is Agudath Israel of America v. Cuomo, issued on November 9. The Governor issued a "red zone" for certain high-infection neighborhoods in New York City, prohibiting non-essential gatherings of any kind, closing non-essential businesses, prohibiting restaurants from seating customers, and preventing houses of worship from hosting more than 10 people or more than 25 percent of their maximum capacity, whichever number is lower. 

The courts do not seem to squarely resolve a threshold issue: whether the government has any authority to impose restrictions like this at all. At this point, we are just assume the Governor can impose restrictions on public behavior. The Court in this case starts off with grim statistics about the death toll caused by Covid-19. These are not ordinary times, when even a slight speech restriction can result in liability against the government. Now the government is able to impose serious public assembly restrictions that would never survive constitutional scrutiny in normal times.

Plaintiffs argue that the religious components of the Executive Order violate the Free Exercise Clause of the First Amendment. That's the freedom-of-religion clause. Plaintiffs are bringing the hail-Mary of legal arguments: an immediate injunction against this order, prior to trial. To win such an injunction, the plaintiff has to show it will likely win the case, will suffer irreparable harm without the injunction, and that the public interest favors its position. Plaintiffs cannot satisfy that high burden.

Governmental rules or laws violate the Free Exercise Clause when they single out a religion and treat that religion unequally from secular entities and people. In 1990, the Supreme Court said these rules do not discriminate against religion so long as these rules apply to everyone. The Court of Appeals (Lohier, Rakoff [D.J.]) rules against the religious plaintiffs because, while the Executive Order does impact these houses of worship, they are not being singled out by the Order. The color-coded zones that Gov Cuomo created depend on the severity of the infection rates in those neighborhoods. "Within each zone, the order subjects the religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings." The Circuit court cites a recent Supreme Court and Seventh Circuit case to support its holding, recognizing that a body of Covid-19 case law is starting to develop.

Judge Park dissents, demonstrating these are still difficult issues. The dissent looks at the record differently than the majority, writing that, within the same zones, houses of worship are subject to more strict restrictions than certain "essential" businesses, some of which have no restrictions. Judge Park adds, "the executive order does not impose neutral public health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retain stores, and construction) for favorable treatment, calling them 'essential,' while imposing greater restrictions on 'non-essential' activities and religious worship.'" This seems to be the key distraction between the majority and dissenting opinion. While the majority says the distinction between essential and non-essential was based on epidemiological evidence, Judge Park disagrees, stating there is no data or scientific study in the record, only observations by public health officials.