New York's Nonsensical COVID Rules Force Theaters To Operate at 33 Percent. Unless They Host Church Services.

If hosting a religious service or a performance that includes food service, theaters can open to 50 percent capacity. But plays and other performances are still capped at 33 percent.


For a few hours every Sunday morning, New York City's Jerry Orbach Theater transforms into a church. When it does, the 199-seat off-Broadway theater can be filled to 50 percent capacity under the state's current COVID-19 rules.

A few hours later, when the Jerry Orbach welcomes guests to yet another performance of Perfect Crime, the long-running murder mystery show, the 199-seat theater's capacity must be capped at just 33 percent.

Yes, under New York's pandemic rules, the exact same physical space that can't host more than 66 people for a performance is somehow considered safe when up to 99 people gather there to pray and sing together. That's despite the fact that, based on what we know about how the COVID-19 spreads, church services seem to be, if anything, more dangerous for unvaccinated attendees.

The theater, which is owned by longtime Perfect Crime star Catherine Russell, has been operating at a loss due to the capacity restrictions, according to an amended complaint filed this week in a lawsuit challenging New York's COVID-19 rules for theaters.

"For small venue theaters and comedy clubs…that differential treatment can mean the difference between breaking even and performing at a loss," lawyers from the Pacific Legal Foundation, a libertarian law firm, wrote in court filings on behalf of Russell's theater and several others in New York. The amended complaint argues that New York's disparate treatment of theaters and comedy clubs relative to similar venues like churches violated both the First and 14th Amendments.

The lawsuit points out that it isn't only houses of worship that have been singled out for better treatment. Wedding venues, conference centers, and other large indoor event spaces are allowed to operate at 50 percent of capacity.

Even though Gov. Andrew Cuomo has announced plans to lift all COVID-19 capacity restrictions on May 19, the situation at the Jerry Orbach Theater is, for now, a lingering reminder of the arbitrary and often nonsensical rules that have governed Americans' lives and livelihoods for the past year.

People seem to take COVID-related restrictions less seriously when they are engaged in virtuous activities, polls show, but that's no reason for such distinctions to make their way into official government policies.

Unfortunately, New York has been a national leader when it comes to nonsensical COVID rules—rules with predictable results. Earlier in the pandemic, Cuomo mandated that bars must serve food in order to serve alcoholic drinks, and then tried to regulate exactly what kind of food must be served when bars mocked Cuomo by offering the bare minimum.

If Cuomo goes ahead with plans to lift all restrictions in New York later this month, Russell and her fellow theater owners likely won't get their day in court. Still, the nonsensical rules in place for the past month are yet another reminder that arbitrary restrictions on economic behavior are a poor way to fight this, or any, public health scourge.