A federal district court judge today issued a preliminary injunction against Gov. Andrew Cuomo and Mayor Bill de Blasio to stop them from limiting participation in outdoor religious gatherings as a response to the pandemic. The judge, Gary Sharpe (a Bush 43 appointee), emphasized that, notwithstanding the Wuhan coronavirus, Cuomo and de Blasio permitted, and indeed seemed to bless, outdoor protests following the killing of George Floyd.
Judge Sharpe explained that the regulation limiting participation in outdoor religious services results in the “curtailment of fundamental rights without compelling justification.” The purported compelling justification is preventing the spread of the coronavirus. However, as the attorneys from the Thomas More Foundation who filed the lawsuit noted, this justification “went right out the window as soon as [Gov. Cuomo] and Mayor de Blasio saw a mass protest movement they favored taking to the streets by the thousands.” At that point, “the limit on ‘mass gatherings’ was no longer necessary to ‘save lives.’”
Judge Sharpe saw the same problem. He quoted this statement by Cuomo:
Protest. Just be smart about it. With this virus, you can do many things now as long as you’re smart about it, right? You can reopen, you can go into a store and you can do a lot of things, just be smart.
Yet, the number of people allowed by New York to worship together outdoors was sharply limited, no matter how “smartly” the religiously observant were prepared to proceed. Allowing political protests, no matter the size, while limiting religious worship was obvious discrimination against one set of First Amendment rights.
Judge Sharpe went on to say:
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.
I’m not sure that silence, or even non-enforcement, would have been sufficient to avoid the discrimination against religion worship resulting from an order expressly severely limiting gatherings for the purpose of worship. But Cuomo and de Blasio — incorrigible leftist virtue signalers that they are — made these questions irrelevant, and made it easy for the judge to shoot them down.
UPDATE: Judge Sharpe’s opinion is here. In addition to his ruling on outdoor religious events, the judge also enjoined New York from enforcing its rule limiting indoor religious services to 25 percent capacity. He noted that on its face, the 25 percent rule applies only to houses of worship. No other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, is limited to only 25 percent capacity.
Yet, entities allowed to operate at 50 percent capacity are not justifiably different from house of worship. the judge found. He cited offices, retail stores that are not inside of shopping malls, salons, and restaurants.
NOTE: My original post about this case incorrectly characterized New York’s rule as a ban on outdoor religious gatherings, rather than as a severe limitation on participation in them.