The Volokh Conspiracy
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Today's decision by Chief Judge Glenn T. Suddaby in Ass'n of Jewish Camp Operators v. Cuomo rejects religious freedom and parental rights challenges to Gov. Cuomo's continuing order closing overnight children's camps. The court concludes that the government is entitled to a great deal of latitude in deciding on such public health measures; and while discriminatory targeting of religious practices might violate the Free Exercise Clause if comparable nonreligious behavior isn't forbidden, this isn't so here:
Although the Court agrees that not taking enforcement measures against various
protestors (including those seeking refuge in enclosed theater and museum lobbies for indeterminate periods of time) arguably indicates that Defendant created a de facto exemption to the executive orders, the existence of an exemption is not by itself determinative, as discussed above: the individualized exemptions must also be properly comparable to the challenged action, suggesting discrimination. See Soos, 2020 WL 3488742 (comparing outdoor graduations with outdoor church services when determining whether allowance of such graduations while prohibiting such church services made the executive orders not generally applicable).
In this case, Defendant's executive orders bar all overnight camps from opening during the summer of 2020. Instead of explaining why Jewish overnight camps are being treated differently than are secular overnight camps, Plaintiffs (with all due respect) confuse Defendant's public comments seemingly showing support for the rights implicated by the mass protests over the death of George Floyd with Defendant's alleged disregard for religion in failing to grant a similar exemption to Jewish overnight camps.
Simply stated, the Court finds that permitting children to sleep in groups in enclosed spaces for eight hours per day in overnight camps is not sufficiently comparable to permitting conscious adults to shelter for shorter periods of time inside theater and museum lobbies during mass protests. For example, at the time of this writing, although many mass protestors appear to have been violating social distancing protocols by engaging in various outdoor protests, no evidence has emerged that protestors have been so often assembling in such close proximity in enclosed spaces for such a long period of time that reasonably compares to the way children typically sleep in cabins at overnight camp….
[O]vernight camps, unlike day camps or childcare facilities "are a difficult setting to manage social distancing and face covering and infection control practices." Although mass protests may provide somewhat similar difficulties to manage social distancing and infection control practices, overnight camps "have congregate settings and sleeping arrangements in close quarters that present too many risks," which causes those camps to be potentially more dangerous for the transmission of the COVID-19 virus, as compared to the mass protests. Finally, Plaintiffs have provided no factual allegations or evidence to support their argument that businesses and non-profit organizations (such as theaters or museums) that temporarily open their lobbies (and their bathroom facilities) for public use generate the same or greater risk of transmission of the COVID-19 virus than overnight camps generate.