Federal Court Rejects Jewish Overnight Children's Camps Challenge to Closure Orders

The state of New York, the court concludes, hasn't impermissibly discriminated against such camps.

|The Volokh Conspiracy |

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.

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  1. Seems like a right decision. However, the policy behind it seems misplaced. Children are not likely to suffer from the virus, but are able to be considerably worse vectors in the city where there are plenty of older adults than in the country where children are sequestered with one another and young staff members. Not taking into account that the virus negatively effects children and older people at very different rates is probably bad public policy. In fact, sending kids out to the country and allowing them to quarantine with each other for two months passing the around seems like a great way to neutralize lots of potential vectors on the cheep and help build herd immunity. All this is not even taking into account the intolerable nature of keeping kids in their homes for the summer while their parent(s) has to scramble to figure out how to bring food to the table and look after the child simultaneously. From the beginning, rational discussion about the implications of the fact that the virus affects people differently based on their age has been suppressed, as if it is more important to be age neutral and consider the danger of the virus to persons without consideration of their age or underlying conditions. When a “kind heart” leads to much more death, it is no “kind heart,” but rather a weak heart.

    1. Aaron – I agree with logic in how to handle the virus along with the appropriate risk assessment. Far better to let the young develop the children develop immunity.

      The only quibble is the children and asymtomatic people are less likely to infect others simply because their bodies have fought off the virus.

      1. The judiciary has embarrassed themselves. They have created both a coronavirus exemption to the Constitution and exhibited innumeracy, a lack of understanding of any kind of science, a lack of curiosity, and no ability to understand the most basic statistics. They are of no value if even the slightest hint of hysteria exists. Someone in charge said something and I believe it is the standard of review. The Swiss figured out children under 11 have zero risk months ago. It isn’t even controversial. But somehow this is too complex for our judges, or, they are too personally scared of getting it because they’re all out of shape and old. I don’t even know if the judicial branch needs to exist any longer.

        1. That assessment is not the job of the courts.

    2. Nah its terrible.

      It’s unconstitutional, but allowed because it regards Jews.

  2. “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.”

    The medical evidence is that the children are actually a lot safer. So, yes, it isn’t comparable… in a way that makes the government’s position look even worse!

    1. Brett,
      Is it your understanding that, at summer camps, adults do not sleep in these enclosed groups with the children? There will be a minimum of one adult in each enclosed space. (And I taught at camps where there were as many as 3 adults.)

      Can’t the court take into account health concerns of those adults? (Similar to how I assume courts and legislatures will take into account teachers, aides, janitors, administrators, bus drivers, et al, when addressing school reopenings.)

      1. Those adults are barely older than the children themselves. Certainly not of an age at which they need to worry about the Wuhan Disease.

      2. “There will be a minimum of one adult in each enclosed space.”

        18-21 year olds mainly, also a very low risk category.

        Any problems can be eliminated with reduced camper numbers.

    2. Assuming you’re right on the policy, this doesn’t give rise to a constitutional Free Exercise claim under Smith. The state need merely treat everyone equally (pass a law that is neutral and has general applicability). It can ignore the differences.

      Under the pre-Smith regime, where the state has to show a compelling interest, it would matter. But even there, I doubt courts would entertain this type of expertise-focused policy argument and claim that because children are less susceptible, it must make an exception for religious childrens camps

      1. The state’s executive power under their emergency grants (or what ever they are called) are limited to actual health threats, not remote theoretical possibilities.

        As is well known at this point, These children and the adult supervisors have somewhere in the range of a 1/1m possibility of dying from covid.

  3. So….when all the secular overnight camps are closed on their own. But the religious groups still intend to hold their religious camps.

    THEN the governor decides to shut down “all” overnight camps? When it effectively only shuts down the religious camps?

    How many times is this going to happen? Hold a large outdoor Jewish funeral in NYC…..SHUT IT DOWN…hold a mass protest…that’s OK.

    What next? Perhaps laws that shut down just singing in groups of over 100, but not yelling?

    Perhaps an order that outlaws shared communion, but allows open buffets and indoor dining (Sorry, we already had that one…).

    Maybe a universal law that outlaws all large “t” shaped objects, especially those with people on them. It’s universal, so it doesn’t “target” religion….

    1. You shouldn’t quibble, Armchair Lawyer, or question any public hellth decision, when it comes to the loss of liberties or inconsistent circumscription thereof. What’s freedom compared to dutiful fear and obedience? Who’s to quibble with currently augmented government powers, co-dependent jurisprudence, and pharma profits, when we all know so many people sick and dying in the streets of Covid?

      Meanwhile, there was an article today saying virtually no one under 40 has succumbed to Covid, but the article has vanished, so I can’t link it. It said the circle of family members and friends was similarly not afflicted by the “Covid.” If we were to canvas every level-headed and honest person we know…

      1. “article today saying virtually no one under 40 has succumbed to Covid”

        Miss Greenparker, you are such an impressive fount of medical misinformation and uninformed legal thinking too. What an advantage you enjoy to be unburdened by any relevant schooling or training!

        Since you think the covid19 virus is so benign an experience for everyone (nearly everyone?) under 40 y.o., what can you tell us about PMIS, pediatric multisystem inflammatory syndrome. My pediatric colleagues are finding it a real challenge, but maybe you can help them out with your anti-vaxxer intuitive insights.

        (The Broadway star Nick Cordero who died of the virus after 93 tortured days in hospital was 42 y.o., so we can forget him, right?)

        1. Provisional Death Counts for Coronavirus Disease 2019 (COVID-19)

          You don’t have to be a medical genius to understand that your risk of dying of this disease is very low unless you’re at least middle aged, or have some severe comorbidity. That’s been obvious for months.

          1. You’ve really got to wonder about the weird “No corpse, no foul” position that right wingers have come up with wrt coronavirus. Don’t worry about getting seriously ill as long as you don’t die.

            1. We realize that perfect safety isn’t a real thing, that society to operate has to accept reasonable levels of risk. If you wouldn’t have shut down these camps due to the existence of other diseases of similar lethality in these age groups, why would you do it for THIS virus?

              You’re being irrational, and treating your irrationality as morally obligatory to emulate.

            2. Your “no corpse, no foul” point is well taken (and well stated), but you should have gone further. It’s not a matter of simply getting sick and dying or getting over it quickly, as the fools who believe covid19 isn’t much different from season flu most of the time; not only is the acute illness a bitch for a great many who become symptomatic with it, and prolonged hospitalizations, but many who survive suffer grievous lasting injuries, e.g., chronic renal insufficiency, strokes, etc. (Too soon to have reliable statistics on the frequency of different outcomes other than death.) So long-term disability is another consideration.

              Now, NP, you say “No corpse, no foul” is many right wingers’ position. It seems to be the position of many self-styled libertarians here too. Am I wrong to link such thinking with libertarians? Many do seem to me to be remarkably indifferent to, if not outright hostile, to greater societal interests in public health.
              Refusal to mask up when our best and brightest public health experts agree on what should be done to protect ourselves and those around us, Rand Paul favors listening to Hayek to guide us rather than medical scientists. Is this reasonable libertarianism, or just the lunatic fringe screaming and pounding the table?

  4. IMO: The “religious freedom” argument was a red herring, if anything, it worked against the plaintiffs. The YMCA (Young Mens Christian Association) was also ordered closed by the NY Governor. This was about the camp operators wanting to profit at all costs, regardless of the inherent danger that sleepaway camps have. This was a PR stunt that went awry. In Jewish law, nothing is more important than good health and life, the mere thought of them using “religion” over profits is a non-laughable farce!

    1. Profit?! Which camp do you know of that runs at a profit? All the ones I know of run at a loss, and if they’d been allowed to open this year, with all the precautions they’d planned and promised, the loss would have been even greater. These camps run as a community service, and as far as health is concerned having the kids roaming the streets or attending day camps in the city and going home each night is worse.

      1. You obviously don’t know the inner workings of how most Jewish parents pay for camp!

        1. “You obviously don’t know the inner workings of how most Jewish parents pay for camp!”

          I do.

          What does HOW parents pay have anything to do with operator profits?

          1. Willful blindness is no defense of the indefensible.

    2. The allegation isn’t that the government is particularly biased against Jews, (Though this being NY, that’s certainly plausible.) so much that it’s biased against religion in general. So bringing up the YMCA doesn’t do you much good.

      1. Actually the allegation is that the government is specifically biased against Jews.

        Although Defendant’s decision to prohibit overnight children’s camps applies to all overnight children’s camps (Dkt. No. 1 at ⁋ 52), Plaintiffs argue that Defendant’s decision essentially affects only Jewish overnight camps because the decision was not announced until after almost all of the non-Jewish overnight camps in New York State had decided to close during the summer of 2020. (Dkt. No. 7, Attach. 2 at 11.) (footnote pg 2).

        1. I was going by this in the plaintiff’s claims: “by discriminatorily banning children’s Jewish overnight camps (while exempting
          favored secular conduct)”.

          As I understand it, they asserted that the policy itself impermissible favored secular over religious gatherings, and the timing just went to their own being particularly harmed, because they were the only religious overnight camp that hadn’t already voluntarily closed.

      2. Disagree, they clearly made the argument that the Orthodox Jews were discriminated against. Read the ruling in its entirety!

    3. While I question whether summer camp meets the legal definition of a religious obligation within the meaning of the Establishment Clause, I don’t see any reason to think the plaintiffs were motivated by purely selfish or sleazy motives. Perhaps they wanted what they thought was best for their children.

      1. I don’t think they have to meet the definition of a religious obligation, for their case to have prevailed. If you impose ANY burden on people on the basis of their religion, even if the burden itself has no relationship to their religious practice, you’re engaging in religious discrimination.

  5. The court didn’t question it, but it’s not clear to me that the plaintiffs made a valid religion claim.

    The free exercise clause is intended to address state interference with religious requirements, not conveniences. While public worship and religious education are examples of things that are commonly religiously required, it is by no means clear, and I find myself rather skeptical, that these plaintiffs regard themselves as religiously obligated to send their children to summer camp.

    To the extent that a discrimination argument is being made, I agree that waiting until most other camps voluntarily decided to close before issuing executive order is hardly evidence of discrimination, religious or otherwise, against the camps that refused to.

    I have supported strong religion clause construction. But the religion clauses are not a magic talisman to let members of a religion get out of government rules whenever they find it convenient. The judge should have required the plaintiffs to establish that their religion REQUIRES summer camp and should have discussed this issue first to establish that they have a valid free exercise claim in the first place, before moving on to the other issues.

    1. Excuse me….there is no religion that requires summer camp.

      1. Kind of irrelevant, really. Judaism doesn’t require that you not wear a yellow badge; Does that mean that requiring that you wear one indicating your religion wouldn’t be a 1st amendment violation?

        1. This is a straightforward ruling. Religion played no role in this ruling. It was “neutral” to religion as the judge stated over and over again. This was strictly about : Do overnight camps pose an unnecessary and added danger to the health of NY residents ? The answer is absolutely yes! And does the governor and the NYS Health Dept. have a right to make that determination? Absolutely yes! The baffling, or maybe not so baffling part of the Plaintiff’s argument is: “Jews need summer camp to fulfill their religious obligations” Say what?

          1. “It was “neutral” to religion as the judge stated over and over again.”

            Stating it over and over again doesn’t make it true. The argument here is that they created a neutral rule, then issued exceptions that rendered it not neutral.

        2. “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”

  6. Our government has found a way to indefinitely suspend the constitution.

    And I guess broad and indefinite powers could never be abused so of course this suspension of the constitution has to exist logically right?

    Wrong, there is no suspend the constitution clause in the constitution for good reason. We are living it now.

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