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.

NEXT: Anyone Who 'Aids or Abets' Abortion Could Be Sued Under New Texas 'Heartbeat Bill'

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

  1. Has Catherine Russell ever voted for a democrat?
    Inquiring minds want to know.

    Vote for fascists, get fascism.

    1. Yes, we learned that in 2016. That we learned it yet again in 2020 just tells us we suck at retention. We think all will be hunky dory if we just elect the Strong Man. We’re going to elect another fascist in 2024.

      People really need to read The Road to Serfdom. Really read it, not thump it. The Strong Man is everywhere and always a danger.

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  2. If only there was a reason why.

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  3. Why won’t masks save them?

    Because they do nothing.

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  4. Take it up with the Supreme Court. See what happens.

  5. 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.

    To be fair, though — you know those theater people.

  6. Random.

  7. Not that I’m all for arbitrary COVID restrictions, but if I had to guess why the distinction here, it’s probably because there is a right to free exercise of religion in the bill of rights. And the Supreme Court has smacked down a few places for restricting that free exercise.

    Not sure there is a right to the free exercise of theater viewing that will stand up to rational scrutiny.

    1. This. Early on, lots of states were banning church services or restricting what they could do. This was considered to be a restraint on the free exercise of religion and got smacked down if there was even a whiff of a similar activity with fewer restrictions.

      If one buys into the idea that the government has a right to decide on risk levels (not a popular belief around these parts, but it underlies every COVID rule), then it isn’t too far-fetched for the government to decide that the benefit/freedom inherent in some activities are worth a higher risk tolerance than others. Early on, they closed book shops but not grocery stores. It is not as if anyone believed that grocery stores are less dangerous. But if you closed grocery stores, the cities and suburbs would stave within days (and I suspect the rural folks don’t actually have as good of an ability to live off the land as they like to claim). Whereas living without books for a few weeks is tolerable. And, yes, I agree that it is extremely discomforting to think that the governor has emergency powers to essentially decide for you what risks are worthwhile. However, that points to a need for better restrictions on long term use of emergency powers, and not that NY is claiming that plays are more dangerous than church.

  8. That is a whole different level of thought process. You cannot sit together but group can sing together. The virus is Theist. Thank god we have apps for watching movies online. Cinema HD app is a good app and we can use this until we get our Theatres back.

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