The Volokh Conspiracy
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Earlier this month, I blogged about Governor Cuomo's COVID-19 restrictions that shuttered house of worship and schools in predominantly Jewish neighborhoods (See here, here, here, here, and here). Since then, I have been actively involved in some litigation.
First, I represent parents and a Jewish school that challenged the Governor's orders. The Jewish Coalition for Religious Liberty (JCRL) was proud to partner with the Becket Fund for Religious Liberty to file suit. The case, Lebovits v. Cuomo, is currently pending in the U.S. District Court for the Northern District of New York.
Here is the summary of our argument:
For over 100 years, Orthodox Jewish girls have been learning and practicing their faith in Bais Yaakov schools. And for almost as long, the Supreme Court has recognized that the Constitution protects the "fundamental right" of parents like Plaintiffs Yitzchok and Chana Lebovits to direct their children's religious education. That is as it should be, particularly in a country to which so many Jews came to escape persecution and to preserve the freedom to raise and educate children in their own faith.
In a different case, a court might be asked to ascertain the point at which this fundamental right must yield to a government's claim that in-person education poses a public health risk. Indeed, this Court already considered the public health claim once in Soos v. Cuomo, — F. Supp.3d —, 2020 WL 3488742 (N.D.N.Y. June 26, 2020), enjoining Governor Cuomo's and Mayor De Blasio's efforts to apply an indoor capacity limitation only on houses of worship. But this case is even easier, because here the Governor himself openly admits that COVID is "not being spread by schools." And BYAM is particularly safe, both because it follows rigorous, State-approved protocols—resulting in zero known cases to date in the school—and because it plans to test all students and staff before returning to school….
Nor can the government claim that the targeted Jewish neighborhoods have particularly high levels of COVID. To the contrary, as Cuomo recently stated that the COVID levels at issue are quite low ("To other states that's nothing"). Indeed, across the entire country, there is not a single other state whose protocols require school closures for the COVID levels that caused the instant shutdown.
So, if neither the inherent danger of school nor a particularly high COVID rate explains the school closure, what does? The evidence admits of only two other explanations. One is religious targeting of the Orthodox, a charge the government admits. Another is that, as Cuomo recently stated, these closures are not driven by public health, but by "fear" of people "losing confidence" in the City and "moving out." In response, the State adopted what Cuomo called a "fear-driven" response that he acknowledges is a "very blunt" policy, "cut by a hatchet," which "is not the best way to do it," but which someday might give way to "a smarter, more tailored policy."
But fear is not a compelling government interest, and—even in a pandemic—constitutional rights deserve better than a hatchet job. That is particularly true where the government admits public health is not in jeopardy. BYAM and its families have a fundamental right to continue their education in the proven safety of their school, and the government has no valid reason to prevent their return to that safe environ-ent. Accordingly, a temporary restraining order should issue.
Here are some of the filings in the case:
We are grateful to Professor Stephanie Barclay (Notre Dame), who filed an amicus brief on behalf of various Muslim groups and Professor James Phillips (Chapman) who filed an amicus brief on behalf of the Center for Constitutional Jurisprudence.
Second, JCRL and Becket partnered to submit an amicus brief to the Second Circuit in Agudath Israel of America v. Cuomo. In this case, several synagogues challenged the GOvernor's order.
Here is the summary of the argument:
Some free exercise cases are hard, but this one is not. Under any theory of the Free Exercise Clause, a government that uses targeted restrictions to close houses of worship must face constitutional scrutiny. That is particularly true where, as here, the religious restrictions are specifically focused on a minority group. Express attacks on religious minority groups in response to real or perceived threats have a terrible historical pedigree, and do not belong in American public discourse. The First Amendment helps weed out such attacks by subjecting targeted restrictions to strict scrutiny to ensure it happens only where government has exceptionally good reasons.
Almost eighty years ago, the Supreme Court rejected an attack on another religious minority that had been scapegoated as a threat and singled out for ill treatment. See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Few things could be more corrosive to the body politic than allowing collective guilt to be applied to a disfavored religious group because of the perceived actions of some of their co-religionists. As it was 77 years ago, it is sadly again "necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings." Id. at 641; accord Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (overruling Korematsu v. United States, 323 U.S. 214 (1944)). By applying strict scrutiny, the Court should nip this attack on our core constitutional values in the bud.
And it is on this question of strict scrutiny—even more than on targeting—where Governor Cuomo's many public comments about his Order are dispositive. Where the Governor himself characterizes his Order as based on fear rather than science, as cut by a "hatchet" rather than a scalpel, and designed to manage public "anxiety" and people "moving out" of the City, no Court should uphold his Order and allow worship to be largely prohibited for a religious minority. Rather, the only constitutional course is an injunction.
I will post updates about the litigation as warranted.