New York governor Andrew Cuomo has asked a federal court to block the state’s own restrictions on capacity at houses of worship in areas with high rates of coronavirus spread.
Cuomo issued an executive order in October ordering houses of worship to accept no more than ten people in so-called coronavirus “red” zones,” while 25 worshippers could be allowed in “orange” zones. The U.S. Supreme Court ruled in November that those restrictions were unconstitutional, in a case brought by the Roman Catholic Diocese of Brooklyn and Agudath Israel, an umbrella organization of Orthodox Jewish groups.
The Supreme Court’s ruling referred the case back to a lower court. The case was then referred to the U.S. District Court for New York’s Eastern District, which struck down the pandemic restrictions on worship on Monday.
“Defendant [Cuomo] has agreed to an injunction against enforcement of the…capacity limits in red and orange zones,” Judge Kiyo A. Matsumoto wrote in the Monday injunction. “Subsequently, Defendant’s counsel has represented in status conferences that before the end of February 2021,” the executive order’s restrictions “will be amended to remove houses of worship.”
So @NYGovCuomo is asking a court to stop him from enforcing his own executive order, which struck some lawyers as odd
An outgrowth of that is that the state is asking a court not to hear from New York's health commissioner about how pandemic health policy was made
— J. David Goodman (@jdavidgoodman) February 8, 2021
Matsumoto’s ruling came after lawyers for the governor asked to cancel a hearing on the case, in a series of filings first reported by The New York Times. Aides to the governor told the Times that the state did not support an injunction against Cuomo’s executive order, but also did not oppose the injunction.
One result of allowing the District Court to block the executive order was to prevent New York State health commissioner Howard Zucker from appearing for testimony at a previously-scheduled hearing in the case. Eric Rassbach, vice president and senior counsel at religious-liberty advocacy group Becket, alleged that the decision to drop the case was made to prevent Zucker from testifying in ourt.
“The Governor is desperately trying to avoid testimony showing that his orders shutting down synagogues and churches weren’t based on public health, but on politics,” Rassbach said in a statement.
However, the state may have decided to drop the case because they realized they would lose in court, Bill Hammond, senior fellow for health policy at the Empire Center, told National Review.
“It may just be that they don’t want to have this fight,” Hammond said. “They’ve decided they’re on the losing side of it, they’re not going to push it any further. They’re going to basically concede the point and walk away.”