Religion and the Law

N.Y. Officials' Endorsement of Anti-Racism Protests Leads to Successful Religious Freedom Challenge to Gathering Ban

"The City's argument that temporary selective enforcement of the challenged laws with respect to mass race protests is a matter of public safety ... would perhaps be legitimate but for Mayor de Blasio's simultaneous pro-protest/anti-religious gathering messages, which clearly undermine the legitimacy of the proffered reason for what seems to be a clear exemption, no matter the reason."

|The Volokh Conspiracy |

From Judge Gary Sharpe's opinion today in Soos v. Cuomo (N.D.N.Y.):

Pending is an application for preliminary injunctive relief filed by plaintiffs Reverend Steven Soos, Reverend Nicholas Stamos, Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld … seek an order restraining and enjoining defendants Andrew M. Cuomo, Governor of the State of New York; Letitia James, Attorney General of the State of New York; and Bill de Blasio, Mayor of the City of New York: (1) from enforcing any gathering limits to outdoor religious gatherings; and (2) from imposing any limitation on indoor gathering … for religious gatherings in parity with the 100% occupancy allowed for favored "essential businesses," day camps and special education classes, or, alternatively, at least 50% occupancy in keeping with what is permitted for "non-essential" businesses and every other indoor activity allowed to continue under Phases Two and Three except religious activity, which alone is still arbitrarily confined to 25% occupancy.

The judge's statement of the facts noted the government's response to the anti-racism protests:

Mass race-related protests have erupted across the nation, including in the State of New York, in response to the death of African-American George Floyd on May 25, 2020. Protesters, sometimes in groups of thousands, have taken to the streets of New York City as well as other major cities in the State of New York. During this time, a "social media campaign" has encouraged theaters in New York, which are to be closed until "Phase Four" of New York's reopening plan, to open their lobbies and restrooms for protesters.

[1.] [Response to the Protests by] Governor Cuomo

During a press conference held on June 1, 2020, when asked if he would "suggest people not go out and protest," Governor Cuomo answered: "No, I think you can protest, but do it smartly and intelligently…. There were protests all across the country. 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."

When asked what the difference is "between protesting and a business, say, in the city who wants to reopen smartly if it's not at the phase yet that they're technically allowed to," Governor Cuomo answered: "Well, that's where we're at, but it has to be a business where you can be smart. Be smart, meaning socially distant. You don't conduct business in a way where you have people within six feet. You have to wear the mask. You have to do the hand sanitizer. That's where we're going to be."

During a press conference held on June 4, 2020, when asked about his reopening plans, and if there was a way to "allow high school graduation ceremonies with social distancing," Governor Cuomo remarked: "Did you hear anything that we've been talking about for the past 96 days? … [Y]eah I know everybody wants to go to a high school graduation, I get it. Not if they're going to die." When asked how he is able to justify opening a patio for outside dining, but will not allow high school graduation ceremonies with social distancing, Governor Cuomo answered: "What difference does it make? … The issue is a public health issue and you don't want people sick and dead. It's about death, it's about balancing the risk versus the reward, balancing the desires and wants versus the consequences."

During this same press briefing, Governor Cuomo also stated, "I want to thank the protestors…. I stand with the protestors on the point that we need meaningful reform."

When explaining the modification of non-essential gatherings for houses of worship to no greater than 25% of the indoor capacity of such location, provided in Order 202.38, Governor Cuomo explained, in part: "We are going to accelerate the opening of temples, mosques, [and] churches…. 25 percent occupancy is not as easy as 100 percent occupancy but 100 percent occupancy is a mass gathering and you really can't do social distancing." He further advised New Yorkers to "[b]e smart. It does not mean you go to a temple or a mosque and you sit right next to a person. You have to socially distance."

[2.] [Response to Earlier Gatherings and Then to the Protests by] Mayor de Blasio

On April 28, Mayor de Blasio appeared in Williamsburg at a Jewish funeral gathering, which was dispersed by the New York Police Department (NYPD). Via Twitter, Mayor de Blasio wrote: "Something absolutely unacceptable happened in Williamsburg tonite [sic]: a large funeral gathering in the middle of this pandemic. When I heard, I went there myself to ensure the crowd was dispersed. And what I saw WILL NOT be tolerated so long as we are fighting the Coronavirus." This was followed by another tweet: "My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period."

During a June 2, 2020 media conference, when asked: "What about the retail store owner facing imminent financial ruin or the religious person who cannot [attend a] house of worship? What about their pain and anger?" Mayor de Blasio replied, in part: "When you see a nation, an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism[,] I'm sorry[,] [t]hat is not the same question[] as the understandably aggrieved store owner, or the devout religious person who wants to go back to services."

On June 4, 2020, Mayor de Blasio, without a mask, attended and addressed a political gathering, held in memory of George Floyd. Neither the ten-person limit on outdoor gatherings, nor the social distancing protocols, were adhered to….

The court then turned to the legal analysis:

Having carefully reviewed the relevant issues, and with a firm understanding that the executive branch response to the pandemic has presented issues with a degree of complexity that is unrivaled in recent history, it is plain to this court that the broad limits of that executive latitude have been exceeded. That is not to say that Governor Cuomo or Mayor de Blasio have utterly failed in their reaction to COVID-19. To the contrary, the State of New York, at the moment anyway, is among the best situated states in terms of infection and mortality rates. While there is more clarity every day with respect to the best practices for slowing the spread of COVID-19, there is wide and reasonable disagreement about exactly how to implement rules and regulations to achieve those ends, and, as is particularly present in this case, even more so with respect to reopening in a way that promotes safety, economic viability, and the enjoyment of all the rights that the people of this country and the State of New York are guaranteed. As the Chief Justice recognized in Newsom, it is not the judiciary's role to second guess the likes of Governor Cuomo or Mayor de Blasio when it comes to decisions they make in such troubling times, that is, until those decisions result in the curtailment of fundamental rights without compelling justification….

"The general applicability requirement [under the Free Exercise Clause] prohibits the government from 'in a selective manner impos[ing] burdens only on conduct motivated by religious belief.'" "It 'protect[s] religious observers against unequal treatment, and inequality [that] results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.'" "While '[a]ll laws are selective to some extent, … categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.'" "A law is therefore not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it."

"Individualized exemptions are [another] way in which a law can fail to be generally applicable." In Smith, the Supreme Court explained that, "where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." Case law within this Circuit supports the notion that individualized de facto exemptions can demonstrate that a challenged law is not generally applicable, and is therefore subject to heightened scrutiny. 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….

The State argues, in overly-simplistic fashion, that the challenged laws only incidentally impose a burden on religious exercise, and they are neutral and generally applicable, and therefore, only rational basis need be shown, which is self-evident: preventing the spread of COVID-19.

The State was silent with respect to the mass race protests in its written submissions until it filed a supplemental memorandum of law following the return on the motion. In that supplement, the State argues that Governor Cuomo's "political speech" cannot support a de facto exemption vis-à-vis the mass race protests.

The City initially responded with respect to only the ten-person indoor/outdoor limitation that was applicable in New York City during Phase 1. It argues, like the State, that the challenged laws are neutral and generally applicable, but, unlike the State, the City initially acknowledged the mass race protests and contended that they are not comparable because protests occur outside and religious activity typically occurs inside. Further the City asserts, relying on Calvary Chapel Dayton Valley v. Sisolak (D. Nev. June 11, 2020), that the enforcement of the challenged laws against protesters creates safety concerns and, absent clear patterns of unconstitutional selective enforcement, the court should not second guess the State's determinations. In its supplemental submission, the City contends that the orthodox Jewish plaintiffs "may no longer seek redress for their alleged injuries" because, as of June 22, New York City has entered Phase 2, which lifts the ten-person indoor/outdoor limitation and imposes a 25% indoor capacity limitation. The City also amplifies its contention, explained for the first time during the motion return, that a de facto exemption has not been created for mass race protesters.

In light of the developments and natural progression of the challenged laws since the motion return, the restrictions and limitations at issue are: (1) a 25% indoor capacity limitation for Phases 2 and 3; (2) a twenty-five-person outdoor gathering limit in Phase 3 locations; and (3) a ten-person outdoor gathering limit in Phase 1 and 2 locations. And the  City's argument that Schonbrun, Perr, and Mayerfeld "may no longer seek redress" because their region has gone into Phase 2, is rejected. While it is true that their allegations are tailored to the ten-person indoor/outdoor limitation that existed when this matter was commenced, it is readily and reasonably inferable from their allegations that the 25% indoor capacity limitation would continue to burden their free exercise of religion.

The court then held that the restrictions likely weren't generally applicable, and thus likely violated the Free Exercise Clause:

Assuming, without deciding, that the challenged laws are neutral, plaintiffs have demonstrated a likelihood of success on the merits with respect to their free exercise claim because it appears that the challenged laws are not generally applicable, and that they would fail strict scrutiny.

[1.] 25% Indoor Capacity Limitation

On its face, the 25% indoor capacity limitation applies only to houses of worship. Indeed, that limitation is the only one of its kind in the tangle of executive orders and the Guidance Document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity. The "nonessential businesses," dubbed "Phase 2 industries" by executive order, that enjoy a 50% capacity limitation are, however, not justifiably different than houses of worship.

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. Restaurant patrons sit and congregate with family and friends in close proximity for a lengthy period of time, and have close contact with their hosts and servers. Face coverings may be removed while seated. Additionally, special educational services will be permitted during "the summer term in school districts" with no indoor capacity limitations.

All of this is to demonstrate that these secular businesses/activities threaten defendants' interest in slowing the spread of COVID-19 to a similar or greater degree than those of plaintiffs', and demonstrate that the 25% indoor capacity limitation on houses of worship is underinclusive and triggers strict scrutiny review.

{There is also an arguable basis to find a de facto exemption in light of the open lobbies social media campaign. In light of the court's conclusion that the 25% indoor capacity limitation is not generally applicable because it is underinclusive, it need not reach the individualized exemption argument. Admittedly, the basis of such an argument here is on far shakier footing, given the lack of acknowledgment or endorsement by defendants, than it is with respect to the mass race protests discussed below.}

[2.] Twenty-Five-Person Outdoor Limitation in Phase 3; Ten-Person Outdoor Limitation in Phases 1 and 2

Despite the State's claim that enforcement power rests with local authorities in an effort to show that selective enforcement against mass race protesters is not a de facto exemption imposed by Governor Cuomo or Attorney General James, Governor Cuomo clearly has authority over the New York State Police and broad powers of enforcement. And, in any case, Governor Cuomo's comments, which applauded and encouraged protesting and discouraged others from violating the outdoor limitations, likely demonstrate the creation of a de facto exemption.

Mayor de Blasio is a "local authority" with clear enforcement power and has at his disposal one of the largest municipal police departments in the world, and has also actively encouraged participation in protests and openly discouraged religious gatherings and threatened religious worshipers as set forth above. The City's argument that temporary selective enforcement of the challenged laws with respect to mass race protests is a matter of public safety based on the rationale of Sisolak would perhaps be legitimate but for Mayor de Blasio's simultaneous pro-protest/anti-religious gathering messages, which clearly undermine the legitimacy of the proffered reason for what seems to be a clear exemption, no matter the reason.

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.

Another case of individualized exemption seems even more obvious. The State has specifically authorized outdoor, in-person graduation ceremonies of no more than 150 people beginning today, June 26.  This is an express exemption from the ten- or twenty-five-person outdoor limits that apply across Phases 1, 2, and 3, and the State must extend a similar exemption to plaintiffs absent a compelling reason to the contrary. And there is nothing materially different about a graduation ceremony and a religious gathering such that defendants' justifications for a difference in treatment can be found compelling.

The judge therefore restrained the defendants

  • from enforcing any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries, provided that plaintiffs follow social distancing requirements as set forth in the applicable executive orders and guidance; and
  • from enforcing [presumably, also just against plaintiffs -EV] any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance ….

NEXT: 'Throw a Billion Dollars from the Helicopter' Is a Grand-Slam Attack on Publicly Financed Stadiums

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  1. Christians have it tough in America…

    1. I don’t think that’s relevant to the general applicability inquiry (which doesn’t require proof of specific religious hostility to a particular religion or denomination, see, e.g., McDaniel v. Paty and especially Justice Brennan’s influential concurrence in that case). But I should note that three of the five plaintiffs are Orthodox Jews.

      1. I saw. My quick first-take was simply that all this complaining about anti-Christian everything, e.g. by commenters on this blog, doesn’t have much basis in fact when Christians can run to the courts and get exempt from just about anything. Last month’s South Bay United Pentecostal Church v. Newsom was noteworthy exactly because it is the first time in living memory that someone played the Christian card and still lost.

        Whether the same is true for Jews I’m not very well placed to say, if for no other reason than that the cases I see rarely involve parties who are Jewish.

        1. My quick first-take was simply that all this complaining about anti-Christian everything, e.g. by commenters on this blog, doesn’t have much basis in fact when Christians can run to the courts and get exempt from just about anything.

          Wait till you hear what black and gay people are up to!

          1. Yeah, I mean, I dont quite understand this argument. The entire point of rights is to protect minority groups, like blacks, gays, religious, etc … from the political process.

            Doesn’t mean I agree with every protection. But yeah … the whole point of the courts is to exactly this.

            1. “The entire point of rights is to protect minority groups,…”

              I would argue that a more precise statement would be “The entire point of rights is to protect groups disfavored by the powers that be”.

              Whether the N.Y. State government will give a more cordial reception to blacks, gays, conservative christians, or orthodox jews is left as an exercise for the reader (fwiw, I don’t really have an opinion there, I’m a not-from-NY honkie atheist).

              (and I think Noscitur’s point was responding to the implied notion that only christians get relief from the courts; blacks and gays have sought and received support from the courts from time to time)

            2. AC — I suggest you have framed that a bit wide of the target. The political process is the only means available by which the nation can manage public affairs. Rights cannot be so encompassing as to abolish that indispensable power.

              The current instance of public emergency illustrates especially well that sometimes rights must give way to policies arrived at by politics. Perhaps your framing would work better if you wrote, “The entire point of rights is to protect minority groups, like blacks, gays, religious, etc … from miscarriages of the political process which target rights holders gratuitously, or without valid public purpose.

              If you suppose that way of thinking about rights invites abuse, consider that one of the public purposes the political process defends is the purpose to balance rights when they come into conflict, as they inevitably do. For instance, as at present, the case of the right to religious exercise, balanced against the public power to suppress deadly disease to protect the right to life of all citizens. Insisting on rights can hardly be a method to resolve the conflict between opposing rights inherent in that essentially political dilemma.

              1. When the deadly danger is used to override enumerated rights, and the government starts assigning value judgements to rank others vs. it, they may now lower them beyond other rights not enumerated. The People informed government of the value rating when they created the government by adding the first amendment.

                Religion is in the same amendment as peaceably assemble, and politicians may not use politics i.e. fear of elections, to bump some way up, and declare others little more than lifestyle choice fluff.

                And if we’re playing games of long-term oppression and death, I think government mucking about in religion is the largest lion on the hill.

            3. You have shorthanded this terribly.
              The Bill of Rights was written to protect all citizens from the power of a centralized Federal Govt. Several right were enumerated because of historic abuses by rulers in the past.

              SCOTUS creation of protected classes is new. This ruling has nothing to do with protected classes

        2. A week or two after the Christian position, if you want to call it that, lost at SCOTUS with regard to men being men and women being women, your comment is that Christians run to the courts are are granted some sorta auto-win?

          Wow.

        3. That’s all well and good. The problem is, the constitution doesn’t care. Because Martinned doesn’t feel a particular religious group ‘has it rough’ doesn’t give the state the power to discriminate against them.

    2. Alright already, it sucks to be ‘jew’ 🙂

    3. 25 years ago, Silverglate & Kors in _Shadow University_ put it best — university administrators aren’t worried about the Methodists being upset.

      Christians have it tough in modern America because the only people who have civil rights today are those who are violent. That is not good for the long-term stability of any society.

  2. Brutal but well deserved beat down of Cuomo and DeBasio.

    “To the contrary, the State of New York, at the moment anyway, is among the best situated states in terms of infection and mortality rates. ”

    That “at the moment anyway” is doing a lot of heavy lifting. Like planet sized, maybe solar system sized. NY and especially NYC had the worst response in the world. [China possibly excepted, we don’t really know].

    It was a killing field.

    1. Lol, I’d imagine an opinion after the atom bombs being like, at the moment anyway, Hiroshima is relatively peaceful.

      1. Say what you will about Grand Moff Tarkin, but he reduced unemployment on the planet Alderaan to zero.

  3. Too bad we cannot have a judge decide a case like this in NJ, because we sorely need it. Our free exercise rights were suppressed, with congregants arrested on their own private property. We could not pray in minyans. We could not hold funerals. We could not say Kaddish for our dead. I myself was affected; a family member died and I could not say Kaddish for over 48 days. It was a travesty.

    What happened here was wrong. It was completely wrong.

    1. Do you not see the parallel to Germany in the 1930’s?
      The Jewish community claims “never again”, but complies with every discriminatory edict put out by the fascists.
      Get a grip and start protesting; violently if necessary, or the Uyghurs may not be the only ones in camps.

      1. Uyghurs? We’ve of people in camps here in the states, few I think are Uyghurs.

        1. Such a stupid analogy.

          1. Your silly comparison I should add is the stupid one.

            1. Bob,
              If you add the person’s name at the top of your post (like I did, putting “Bob” at the top), it will make it absolutely clear to whom you’re responding.
              (With this “Reason” website, I wish everyone would do this as a matter of course. It’s often a pain in the ass to try and figure out which comment is related to some other comment…it was probably clear at one point, but after time, and after multiple other comments and sub-comments, and sub-sub-comments, it gets very confusing.)

      2. No, I do not see parallels to Germany in the 1930’s.

        This citizen is not at the ‘JDL’ stage of protesting. Besides, our version of ‘wilding’ is dancing wildly around a Torah scroll on Shavuot.

        1. Maybe you can’t see it because you choose to be blind to it. PC does that. But don’t worry it is only those silly Christians. They won’t ever come for you…

          1. LMAO….Jimmy, if you only knew me. I can pretty much guarantee you that PC is a description my friends would never, ever use for me.

            More seriously….just stop for a minute. Do you honestly think that anything like 1930’s Germany is going to happen here? Isolated incidents of antisemitism…yes, they happen. But the wholesale oppression and persecution of the Jews? That won’t ever happen here in America. Why? Because it is completely antithetical to what we believe, as Americans.

            And I believe we Americans are a good people, Jimmy. That is also what it comes down to. I have an abiding faith in the innate goodness of our people.

            1. People, even Americans, are dumb panicky dangerous animals.

            2. I’m not sure Americans are good people anymore, or how long my side will remain good.

        2. “I do not see parallels to Germany in the 1930’s”

          I do. One group of people is rampaging in the streets; the government looks the other way (or announces its support). Another is actively prevented from peacefully gathering (in much smaller numbers) in their homes / meeting places.
          How long before the former group is allowed to take over the homes / meeting places of the latter group?

          1. The next leader is likely to be Papen but we can rely on him to control Herr _____.

          2. They haven’t gotten to declaring people they don’t like to not be human, but give them time.

    2. Halacha (Jewish law) is very clear that protecting health is more important then mitzvot (Jewish commandments), and I have heard it argued that protecting health and life is the highest mitzvot. It is bad, but you just get thought it. This is a Jewish value that I am very proud of.

      1. Molly, you’d be on firmer ground if you argued dina d’malchuta dina than trying to argue pikuach nefesh with me. Please learn the difference.

        1. Maybe with you, but pikuach nefesh is more important for me and everyone else I know, but dina d’malchuta dina is valid also. And I do know those terms of course, but I did not want my post to be too heavy with terminology that most will now know. I prey with my local Chabad, and I have not heard them express any desire to go against the health recommendations. He had our first minyan in three months last week (our county is “green”) and we held it outside, and only got 10.

          1. I grew up in teaneck and I have a lot of Jewish friends, but, and I mean this with no disrespect intended, you people talk in a completely different language. Even when y’all speak English.

            Like I was in a meeting once with 3 Jewish friends, me, and a Catholic, and the Jews just got into an argument and I commented over to the Catholic, are you getting any of this? And they weren’t even Orthodox.

            Again, no anti-semitism intended, just an observation.

            1. Aladdin,
              I’m Jewish (albeit barely, in terms of religion). And I didn’t understand a word of it either. (I appreciated you stating your good intent in your post. But it wasn’t necessary…I think we all got your main point.) 🙂

            2. Aladdin (and SantaMonica811)….I will explain. I used to live right around Teaneck Aladdin, so I laughed reading your comment. I get it. In brief…

              MollyGodiva has cited pikuach nefesh which translated means ‘to rescue a life’. It is a principle of Jewish law, rooted in Torah (what you call the first five books of the Old Testament), that states you may violate a law to preserve life. The classic example is: You may violate the Sabbath to rescue a life in mortal danger. What MollyGodiva fails to note is this law has an aspect of immediacy to it. Permissive interpretations of this principle are lenient to the point of making the law meaningless. Hence, my objection. But I will be honest here too…I have, on rare occasions, adopted a permissive interpretation of this law.

              Now, dina d’malchuta dina literally means: The law of the land is the law. We are obligated to obey the laws in the land where we live, consistent with Jewish law (called halakah). I felt this was the better precedent to cite, Aladdin (and SM811), because it is closer to the issue at hand (a legal matter).

              1. That is not at all accurate. One may break fasts in order to take medications, or if one has a medical condition that will not allow fasting. One may skip minyan if they or sick or have a contagious disease. One may use electricity to run medical equipment on Shabbat. None of these requires any level of immediacy.

              2. ” The law of the land is the law.”

                Yes, and the US Constitution is the SUPREME law of the land.

          2. Shabbat Shalom, MollyGodiva (and Santamonica811). If you are both nice, I will share my Chulent recipe. 🙂

    3. I’m fascinated by those italics. Is it your understanding that people can’t be arrested on their own private property? Or at least not for things they do on their own private property?

      1. There was a very interesting case in Lakewood, NJ back in April. I thought at the time that would have been a good test case.

    4. This case does not help for that. 10 person outdoor groups is fine for kaddish. Idk what the Christians were thinking, but the Jews here were just being whiny that they were being treated worse than the protests. The current NY phase two laws adequately allow all elements of Jewish religious activity (albeit not in the most comfortable way.)

  4. IMO – The Judge got this one right. He has a similar and not so similar case before him on Tuesday re: Jewish overnight camp cases, where the Plaintiff’s argue Cuomo closing the camps is a violation of their religious freedoms as Jews (because they pray there). It is a nonsensical argument; sleepaway camps are inherently dangerous, and Jews can pray anywhere.

    1. “sleepaway camps are inherently dangerous”

      Are they more inherently dangerous than allowing a graduation ceremony with 150 people attending? (Granted that is not a religious issue, but the distinction seems irrational.)

      1. If you go by the movies “sleepaway camps” are horribly dangerous. Go to one and usually you get murdered by a creep in a hockey mask.

        1. What’s actually more dangerous is being the adult doing a nighttime check after a few of these stories and being confronted by scared 12-year-olds with hatchets.

      2. Indoors is 20 times more dangerous than outdoors according to the medical experts. The amount of time spent indoors is also a factor. Sleeping under one roof for 10 kids and at lease one counselor, is a medical recipe for disaster.

    2. “originialism”

      Why? If the children are old enough and the staff is modestly trained, they can maintain “social distancing” so long as attendance is limited.

      Have you seen the “Occupy City Hall” camp currently being held in NYC? If that is allowed, then a sleepaway camp is a sterile environment in comparison.

    3. Paul,
      The govt has no power to tell a person how to exercise their faith.

      Congress shall make no law establishing a religion, or prevent the FREE exercise…

      It’s cute, you reduce religion to the single act of prayer

  5. 1. There’s quite a bit of time and context between April 28th and June 2 and 4th…

    2. Aren’t courts supposed to pretend political speech was never said/doesn’t matter in allegations of discriminatory treatment (re the Muslim Ban case)?

    3. Isn’t there a difference in that religious services are often held inside while protests rarely were?

    4. Seems to me to be a difference between restaurants and churches. At restaurants people tend to sit with groups of family and friends, at churches you’re encouraged to mingle with, and often interact with, the rest of the church body.

    1. 5. How does Cuomo get blamed for things De Blasio said and did?

      1. That’s the only reason De Blasio has power lol.

        Act like a tyrant, blame Cuomo. Tyrant, then Cuomo. Ad infinitum. People are only just starting to wise up.

        Hell at this point De Blasio is more hated by Democrats than Trump. And yet he still controls NYC. Why do you think that is?

        1. >Hell at this point De Blasio is more hated by Democrats than Trump. And yet he still controls NYC. Why do you think that is?
          It is Cuomo’s fault.

    2. “3. Isn’t there a difference in that religious services are often held inside while protests rarely were?”
      There are far more people cheek-to-jowl at these protests. Even if they are outside and some number of people are wearing masks they are at least as dangerous.

      “2. Aren’t courts supposed to pretend political speech was never said/doesn’t matter in allegations of discriminatory treatment (re the Muslim Ban case)?”

      I need to read that case again. But the plaintiffs here arent relying on Cuomo/De Blasio statements alone. They also arent trying to debar them from enforcing a policy in area x for the duration of their political tenure.

  6. I’m curious why Professor Volokh decided to use the rioter-approved term “anti-racism protests” rather than the court’s description of “mass race protests” or “mass race-related protests.”

    1. Presumably because, in this instance at least, prof. Volokh preferred not to use phrased that needlessly obfuscate the point.

      1. Ah yes the label “Anti-racist” obfuscates nothing at all

        1. Oddly “anti-racist” just means be racist against another set of people that are perceived as evil mostly because of the color of their skin.

    2. Racists don’t like the term ‘anti-racism?’

      1. Racists love the term “anti-racism.” Similarly. fascists love to call themselves “anti-fascists” and dictatorships like to call themselves “democratic republics.”

        1. Yep, and clueless fools like to call themselves our “betters”.

  7. Seems hard to argue with the Judge’s reasoning. With the California case—even if CJ Roberts applied the wrong framework, (Jacobs instead of Lukumi)—the dissent’s comparators seemed sufficiently distinguishable.

    But now with the protests and the city/state leaders endorsement of them it seems that these arguments go out the window.

  8. Silly judge ought to know that through the magic of diversity and multiculturalism viruses can’t spread at these protests.

    1. Well Jimmy the Dane most of these churches are multicultural with many people of different backgrounds.

      1. Sunday morning is the most segregated time in America. Even international universal type of churches inexplicably end up being segregated with church X over on Y street being the one the hispanics go to and church Z over on A street being the one [insert racial/ethnic group] goes too.

  9. These riots were allow with any interference to proceed and what happened. Lawlessness, burning of public and private property, even rape and robbery to name just a few. Now the religious will have the same right as these rioters have I doubt that there will be the criminal acts committed that the rioters did.
    It is not that I agree with large groups assembling but I think that large groups should be given the same rights as large groups of rioters.

    1. I would love to see how the media would have played it if lockdown protesters back in May took over a six block section of a major city and called it Freedomland.

      1. Sometimes I almost think that the Westboro Baptist Church has the right idea.

    2. Or the flip side — NY will be required to arrest BLM. Shoot a couple dozen and the rest won’t be a problem, they aren’t that brave.

  10. Isn’t just as simple as you can’t halfway suspend the 1st amendment? Either both assemble for redress and assemble for free exercise of religion are allowed or both prohibited? Why is that so complicated?

  11. When you see a nation, an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism[,] I’m sorry[,] [t]hat is not the same question[] as the understandably aggrieved store owner, or the devout religious person who wants to go back to services.

    What an utterly political response that was! Easy to imagine VC commenters seething at it’s unprincipled failure to apply decision making alike to a crowd of tens of thousands, or to an individual longing for the solace of religion.

    But there is a principle at work, and it should have decided the case the other way. It is the principle that courts have no business making political decisions. It was not just the response, but the situation, which was inherently political. Because of that, the court had no business in it.

    And before someone jumps in to tell me about majority tyranny, or the special need to protect individual rights when they are most opposed politically, let me suggest that reasoning works when the majority seeks action with an eye to attacking rights. But when, as during this public health emergency, the majority seeks legitimately to balance majoritarian ends, which also involve individual rights, including the individual right to life, then questions of that sort must be decided politically, not by court preemption.

    The court is powerless to do anything but pick a side politically. The rights it defends on one side, it attacks on the other. That is not anywhere an unaccountable court should go. That kind of decision is for the political branches, which the sovereign People have the power to restrain and discipline.

    1. No the court wasn’t picking a side politically. Governor Cuomo and Mayor DeBlasio had several alternative courses of action open to them.

      1. They could have said the protests have created a new situation, rules are suspended so everyone can go protest (and also suspended for the worshipers), and endorsed the protests to their hearts content.

      2. They could have chosen to pardon people who participated in the protests, and acted leniently, without endorsing them or telling people to go join them. That is, they are permitted leeway in enforcement. But they can’t actively rescind the rules (and endorsing breaking them is clearly actively rescinding) while keeping them in place only for the worshipers.

      1. You don’t understand. Cuomo and DeBlasio are Dems. So they can do what they want and need not be consistent or follow rules according to the double standard guys.

        I’m just surprised the court didn’t go along with it and offer some transparently disingenuous analysis.

    2. “And before someone jumps in to tell me about majority tyranny, or the special need to protect individual rights when they are most opposed politically, let me suggest that reasoning works when the majority seeks action with an eye to attacking rights. But when, as during this public health emergency, the majority seeks legitimately to balance majoritarian ends, which also involve individual rights, including the individual right to life, then questions of that sort must be decided politically, not by court preemption.”

      Exactly so! That is, in a nutshell, why FDR was right to intern the Japanese! He was just legitimately balancing majoritarian ends.

      /s

      1. No, it does not mean FDR was right to intern the Japanese. It does mean the Court would have been wrong to tell him he couldn’t. Which is pretty much what Justice Jackson’s dissent in Korematsu concluded—as I have suggested to you previously. Perhaps Jackson’s subtle argument needs another look?

        1. lathrop, the leg you were standing on (in your argument) is hobbled. You and people who think like you are precisely why we have a 1A.

          1. Commenter_XY — The court is powerless to do anything but pick a side politically. The rights it defends on one side, it attacks on the other. That is not anywhere an unaccountable court should go. That kind of decision is for the political branches, which the sovereign People have the power to restrain and discipline.

            That was my summary. Have you got some way to deal with the problem? Or do you think that when rights are in conflict, enforcing one at the expense of the other is just what the courts should do? If so, on what legal basis should a court choose which rights to enforce, and which to disparage?

  12. I think the critical issue here is that the mayor and governor went beyond simple leniency in order to preserve the peace and instead actively endorsed and encouraged the protesters while simultaneously continuing to ban the worshipers. It was this additional act, not the mere decision to refrain from enforcement against the protesters standing alone, that triggered strict scrutiny.

    1. You have succinctly summarized the crux of the issue – again! 🙂 Thank you!

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