The Volokh Conspiracy
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Today, New York Governor Andrew Cuomo announced that schools in certain "cluster zones" would be forced to close. But non-essential businesses in those "cluster zones" can remain open. Why? The Governor considered schools as bigger spreaders of COVID. Here, the Governor trumped the decision of New York City Mayor Bill DeBlaiso, which I wrote about last week (here and here).
The Jerusalem Post, a centrist Israeli newspaper, offered this description:
New York Governor Andrew Cuomo has said that large gatherings of ultra-Orthodox Jews have been responsible for the outbreak of several COVID-19 "clusters" in the state, and threatened to close down religious institutions if they did not comply with regulations.
Speaking at a press conference on Monday, Cuomo used images of mass gatherings by ultra-Orthodox communities in the state to illustrate his claim about the risks of the spread of the coronavirus from such events.
He said that he would be meeting with religious leaders in Orange County, the location of the large Satmar community in the town of Kiryas Yoel; in Rockland County, which has large Satmar and Viznitz hassidic communities; and Nassau County.
"Orthodox Jewish gatherings are often very large and we've seen what one person can do," Cuomo said in reference to several super spreader incidents involving an ultra-Orthodox Jewish man.
"We know religious institutions have been a problem… Mass gatherings are the super spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks.
"I don't mean little violations… I'm talking about when they're only supposed to have 50 people outdoors and they had 1,000… You don't see masks and you see clear violation of social-distancing."
Cuomo said that if religious institutions in New York are to stay open they must agree to the conditions laid down by the state "whether it is the Jewish community, Black churches, or Roman Catholic churches," and said that tough enforcement was also needed.
The contents of this press conference will likely be cited in the near future. In this post, I will offer highlights of his remarks, based on YouTube's transcription feature.
Where does the virus mainly transmit. Dr. Zucker was on the phone, we asked him that question. Schools, which are also the place where different communities come together….Schools can be locations of transmissions. Religious gatherings, especially in these communities. New Rochelle, first hot spot, was an Orthodox Jewish man, who went to a temple. Hundreds of people. And then a wedding hundreds of people. Orthodox jewish gatherings often are very, very, large, and we've seen what one person can do in a group.
At that point, Cuomo started to talk about Judge Barrett's nomination in the Rose Garden.
We're going to close the schools in those areas tomorrow and that's that.
Cuomo moved on from closing schools, to the next category, "religious gatherings."
Religious gatherings. The city's proposal does not close religious institutions. We know religious institutions have been a problem. We know mass gatherings are the super spreader events. We know there have been mass gatherings going on in concert with religious institutions in these communities for weeks. For weeks. I don't mean little violations. You're only supposed to have 50, they had 55. I'm talking about, you're only supposed to have 50 outdoors, they had one thousand. These are pictures from the past couple weeks. And these are just emblematic. You've seen pictures like this for weeks. What did you think was going to happen? What did you think was going to happen? Religious institutions are mass gatherings and raise the greatest potential. Its schools and its large mass gatherings. Schools frankly, because they're students and that's where our heart goes, our priority goes. But in terms of numbers, it's large gatherings and large religious gatherings are large gatherings, these have been going on for weeks. You don't see masks and you see clear violation of social distancing.
As the Governor said "super spreader" events, an image of observant Jews wearing black hats appeared on his powerpoint presentation. And he said the photos were "from the past couple weeks."But the photos use used were not recent. Not even close. One of the photos was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn't even from New York City. It was taken in the Orange County village of Kiryas Joel.
Today @NYGovCuomo shows a picture of Orthodox Jews at a mass gathering. "What did you think was going to happen? He says, "These have been going on for weeks" Well, Gov this Picture is from the 2006 Funeral of the previous Satmar Grand Rebbe, 14 years ago! #Fakenews & Fake facts! pic.twitter.com/YEiq5WVeqo
— Satmar Headquarters (@HQSatmar) October 5, 2020
Apparently the picture @NYGovCuomo put up in his presentation today of a "recent" large gathering in Satmar Kiryas Joel is from 2006 — the funeral of Rabbi Moshe Teitelbaum in Kiryas Joel! pic.twitter.com/CxGtHhyZUj
— Jacob Kornbluh (@jacobkornbluh) October 5, 2020
The Governor's staff simply found a clip art of Jews congregating. They all look the same, anyway.
Later, Cuomo realized the error.
Cuomo: When were these pictures from?
Voice off Camera: The one of the on the right is more recent.
Cuomo: Okay. But they are in the recent past. So this has been going on for weeks. We've been talking about it for weeks.
The Governor's spokesperson blamed a "staff error."
This was a staff error that was caught in real time at the presser. It was swapped out with this photo that was taken two weeks ago at the same location. The new slide was up during the last 10 minutes of the press conference. https://t.co/tu1hcEU4dx pic.twitter.com/1wsL7HEVPn
— Rich Azzopardi (@RichAzzopardi) October 5, 2020
Cuomo wants to deputize members of houses of worship to close the doors after the space reaches capacity. The failure to provide religious enforcers–dare I call them Kapos–will result in shutting down the institution.
If we're going to keep religious institutions open it can only be with two conditions. One, the community must agree, whether it's the Jewish community, whether we're talking about black churches, whether we're talking about Roman Catholic churches. The religious community has to agree to the rules and they have to agree that they are going to follow the rules and they have to agree that they are going to be a full partner in the enforcement of the rules. That's condition one.
At several junctures, Cuomo repeated over and over again that he would personally meet with the Orthodox community. He did not plan to meet with any other denomination. Just the Jews.
I'm going to meet with members of the Ultra Orthodox community tomorrow. I want to have that conversation directly myself this cannot happen again. If you do not agree to enforce the rules then we'll close the institutions down. Uh, I am prepared to do that. Second after we receive the agreement an agreement is only as good as the enforcement. We have to have real enforcement in these clusters and the other statewide clusters. The enforcement will help the community. If the rule is no more than 50%of the people in a black church. I want someone at the door when 50% enter the church, a person there who says to the pastor you agreed to follow the rules. That's 50%. That's it or we close it down. It does not work without enforcement. But both of those condition have to be in place. And if I do not have the agreement, from the religious community directly as a starting point then we will close down the religious institutions. If they do agree to do it in partnership, then I want a real enforcement capacity. We're not going to make the same mistake twice. Tomorrow, I'm going to meet with the larger congregations. New York City, Rocklin, Orange, Nassau, and have that conversation that's step. One if we get past step then we need enforcement in place.
I said from day one blame me blame me you have to revoke a bar owner's license. Blame me if we have to close the temple because it's over 50 percent. I'll do it we have to close a Roman Catholic Church. I'll do it I had to close the St. Patrick's day parade. I did it. I'll do it. But none of these rules are going to make a darn if you don't have the enforcement.
Cuomo explained that he would not shut down schools by zip code. Instead, he would focus on specific "cluster" areas. This is a not-too-veiled reference to Chasidic communities.
Targeting by zip codes is imperfect. The virus doesn't travel by zip codes. Neighborhoods and communities aren't organized by zip codes. Zip codes can be arbitrary and can leave out that some communities that are infected. Zip codes can include communities that have a low infection rate. This is a zip code in Brooklyn. The white areas are inside the zip code but we have the infection rate by address you have areas in that zip code that aren't infected. You then have areas outside the zip code that are infected so the zip code is a template. Uh is rough justice but only rough justice. And we can refine that uh takes uh some review and analysis but look at the actual cases that you have again by address and make sure you're including the relevant zone, not just a zip code. You have to go a little bigger you go a little bigger. If you don't have an infection rate in certain communities, don't include those infection rates. So the zip codes uh as a starting place but we then want to have a team of epidemiologists and demographics people actually look at the maps and where the infection rate is and make sure where we're drawing the right circle or the right borders. And the Controller raised that point. And it's a good point. And the health officials agree. When we did New Rochelle we did a circle.
When the Governor said "This is a zip code in Brooklyn," the Powerpoint displayed a color-coded map of Zip Code 11210. This neighborhood is known as East Midwood. There were white cells, which referred to "no cluster." And the red cells referred to "cluster."
The Forward, a Jewish Magazine observed:.
He showed the location of positive coronavirus tests by address in the 11210 ZIP code, which includes East Midwood, a heavily Orthodox area, and Flatbush, which has a large Black community.
The cluster of positives hewed more closely to the Orthodox area of that ZIP code, where there are numerous synagogues and yeshivas.
Cuomo kept throwing in "Black churches" and the "Roman Catholic Church" to provide balance. But he expressed no interested in meeting with those organizations. I have not checked how many "black churches" are in those hot spot zip codes. I would wager zero.
Again, the Governor repeated that he would meet with Orthodox leaders.
I'm going to be meeting with the orthodox community tomorrow see if they will agree to live and abide by the rules and advocate compliance. If the rabbi advocates compliance that would be a very positive start. If the communities don't agree with the rules, which is possible, I had some conversations where some religious leaders believe they have herd immunity, which is not true. Some uh people believe uh have followed politics and think that masks are ineffective and this is all a hoax. That's not true. But if they don't agree then the state will take action. If they do agree, and we have the ability to enforce, then we will go with reduced guidance, 50 percent rules, primarily outdoors, etc. We're going to do statewide enforcement, state supervised with local resources, but enforcement has to be enforcement. We need better templates geographic templates than zip codes we also need better data on these schools in these hot spot zip codes. More testing. Faster testing so we find out exactly where we are. And we need to establish criteria for reopening.
The Governor wants a person standing outside the door of churches to monitor compliance.
But I want a person monitoring the attendance in a temple in a black church in a catholic church and if the rules are violated then action has to be taken at that moment and that enforcement has to be in place.
A reporter asked the Governor if he had the "legal authority" to shut down the temples.
Reporter: Do you believe you have the legal authority to close down religious institutions? Wasn't there a recent court order barring you from doing that.
Cuomo: We believe we have the legal authority. We will assert the legal authority. We have been sued by the religious organizations. Our legal authority was upheld. I don't like getting into a litigious situation with the religious community. I have enough questions that I have to answer when I get to the pearly gates. I don't want to also be questioned as to why I was sued by the Catholic Church or the Jewish community for closing temples. I have enough issues on my plate. But yes we believe we have the legal authority.
Again, Cuomo said he would meet with Orthodox leaders.
Meet with the Orthodox community see if they will agree to live by the rules. If they do then we need to put in together statewide enforcement task force and the local governments have to give me enough personnel to make it work. And that will be statewide including New York City. Then redraw the geographic uh boundaries see what's in and see what's out.
And the Governor has lots of Jewish friends.
You're dealing with government saying to religions you shouldn't have uh more than x people in your church or your mosque or your temple that's a politically uncomfortable situation. You know i have to say to the orthodox community tomorrow. If you're not willing to live with these uh rules then I'm going to close the synagogues. I have had a 30-year relationship with the orthodox community. It goes back to my father. Uh i have a very close personal relationship with them.
This sort of statement is the Jewish equivalent of, "I have lots of black friends."
The Governor actually admitted that his action is "right on the line of government intrusion of religion."
This is the last thing I want to do. Forget the politics i don't care about that anymore. Personally i don't want to have this conversation. It's a difficult conversation. And you're right on the line of government intrusion on religion. So it's hard.
The Governor wants people to "close the door" to a church if too many people enter.
I'm the state person running the task force. I say [to a health officer] you're going to be stationed in front of Saint Peter's Church. The capacity is 150. You stand at the front door. When they go over you close the door and call me and if you have any problem this state police officer is down the block and he'll come help you.
And if the Orthodox communities do not play ball, the Governor will "close down" their temples.
You know I'm going to say to the orthodox community tomorrow if you don't agree uh then we will have to close down your religious institutions. I'm gonna have to say that to the uh black ministers that's not a comfortable conversation.
Think about it you're a local politician pick one: close temples, close mosques, close schools, close catholic churches, you know? No thank you.
Reporter: There are two concerts that are planned in Brooklyn this week in the ultra orthodox community are you going to close down larger venues this week
Cuomo: Well first of all it shouldn't be happening anyway. Period. It violates the existing law. You have to enforce the law statewide.
We agreed we would do this is the plan of action you were hearing it as soon as i could get it to you testing going forward do you want to see in schools you said there's not enough going on and the city at least the city schools were doing monthly random testing a certain percentage do you want to see something more than that and then how about the yeshivas or religious schools in these areas do you want to see more specific testing.
Stay tuned for more.
The Village of Kiryas Joel, the site of the funeral, gave rise to the Supreme Court case, Board of Education or Kiryas Joel Village School District v. Grumet. Justice Scalia's memorable dissent began with a tribute to Rabbi Teitelbaum.
The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an "establishment" of the Empire State. And the Founding Fathers would be astonished to find that the Establishment Clause-which they designed "to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters," Zorach v. Clauson, 343 U. S. 306, 319 (1952) (Black, J., dissenting)-has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.
The Grand Rebbe could not have imagined the Governor's chutzpah.