LAWSUIT: NYC Residents Sue Cuomo and de Blasio for Allowing Protests, But Not Opening of Houses of Worship

As we all know by now, on May 25, 2020, African American George Floyd tragically died after a white Minnesota Police Officer used his knee to pin Mr. Floyd’s neck to the ground, despite Mr. Floyd repeatedly saying “I can’t breathe.” Over the ensuing days, mass protests erupted across our nation—and all across the state of New York—in righteous anger at this utterly inhumane incident and ongoing problems of racism in our country. After months of government lockdown to stop COVID-19, and despite ongoing restrictions in New York against “non-essential” gatherings of more than 10 people, protestors flooded New York streets by the thousands, often wearing masks, standing shoulder-to-shoulder, and filling up throughways to the brim—even crowding the entire span of the Brooklyn Bridge in New York City.

Now, Matzav.com has learned, a group of New York residents have not filed a lawsuit against Governor Andrew Cuomo and New York City Mayor Bill de Blasio, who, as the protests carried on, both made public statements expressly approving the mass gatherings, so long as they are non-violent. They made these statements between June 1 and June 4 in the face of media questions about why the mass protests are allowed when many businesses and houses of worship remain subject to New York’s ongoing COVID-19 restrictions.

The governor and mayor did not back off their restrictions against houses of worship, thus extending an exemption to mass gatherings protesting the death of Mr. Floyd, but not to religious services seeking to exercise fundamental rights under the First Amendment of the United States Constitution.

Indeed, even as New York enters a phased-in reopening plan, houses of worship have not been allowed to open on equal terms with the mass protests or similarly situated businesses and activities, including manufacturers, retail outlets, charitable and social service organizations like homeless shelters and drop-in centers, professional services, and beaches. Governor Cuomo issued his latest Executive Order (202.38) on June 6, 2020 and stated that in any region which has entered “Phase 2” of New York’s reopening plan, houses of worship may have in-person gatherings of not more than 25% of capacity for indoor services. But the Order failed to remove an ongoing 10-person limit for all other “non-essential” gatherings across the state, including as applied to outdoor services in Phase 2 regions, where two of the Plaintiffs engage in ministry. All of these restrictions are far less justified as the coronavirus positive-test rate has plummeted to only 2%, down from 26% approximately six weeks ago.

It’s true that the U.S. Supreme Court recently rejected a challenge to house-of-worship restrictions in California. But that decision did not face a glaringly unequal 10- person limit that still exists as against all outdoor religious services in New York and against indoor services in non-Phase-2 regions like New York City. And it also expressly refrained from deciding the case on the merits.

Most important, the Supreme Court’s decision preceded the exemption granted in this case to the mass protests demonstrating against the unjust death of Mr. Floyd. As the balance of this memorandum shows, that new exemption, along with numerous others, renders Defendants’ Executive Orders (“Orders”) fatally underinclusive and thus violative of the Free Exercise Clause. The Orders also restrict houses of worship (and their leaders and congregants) according to the content of their expression, since these gatherings would be exempt if they were demonstrating against racism rather than engaging in religious services.

The lawsuit, obtained by Matzav.com, states that the plaintiffs, two Catholic priests (Revs. Steven Soos and Nicholas Stamos) in the North Country, a Phase 2 region, and three Jewish congregants (Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld) in New York City, therefore now seek temporary and preliminary injunctive relief against Defendants’ Orders restricting their indoor and outdoor religious services. As New York begins to reopen and the next upcoming Sabbath and Sunday holy day rapidly approaches, it is only right that religion be deemed no less valuable than protests against systemic racism and other essential and non-essential businesses. Indeed, the lawsuit states, protecting religion and its message of radical equality will only advance the cause of ending racism and making tragic deaths like Mr. Floyd’s unthinkable.

Read the full lawsuit here.

{Matzav.com}