Briefs filed in Lebovits v. Cuomo and Agudath Israel of America v. Cuomo

Briefs filed by the Jewish Coalition for Religious Liberty and the Becket Fund for Religious Liberty.


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.

NEXT: The Original Meaning of “Born … in the United States”

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  1. In all of my life, I never thought I would ever live to see the day where government goes out of it’s way to suppress Jewish religious practice, and to target Jews.

    Never again seems to have become…maybe this one time, or maybe more than just one time in NY state.

    The People’s Republic of NJ is just as bad. It is time to leave.

    1. It’s not “just as bad.” Governor Murphy has been much more responsible with dealing with the Orthodox community than Governor Cuomo. Lakewood, NJ is as much of an Orthodox stronghold as Boro Park, Brooklyn. And both have had serious issues with not following protocols. I know both, and trust me Lakewood is not better.

      And yet somehow Murphy managed to deal with the community and impress on them the need to follow safety protocols, without resorting to the heavy-handed (dare I say fascist?) behavior of Cuomo.

      Cuomo is an embarassment, and it is even more of an embarassment that the media covers up for him and touts him as a model of responsibility.

      1. Cuomo is an embarrassment because a group of his constituents is gullible, reckless, ignorant, childish, and delusional?

        1. That Mexican villa is still available. You can enjoy it for a while, until the “woke” put a bullet in your head.

          1. Enjoy those seven days, clinger.

            1. Exposing anti-semites and bigots like you is always enjoyable. This time the termites* are not going quietly.

              *“I’m not an anti-Semite. I’m anti-Termite.” — Louis Farrkahan. Maybe RALK can learn from him, too.

              1. You will comply, clinger.

                You get to whine about it as you wish, though. But you will toe the line established by better Americans.

                1. “You will comply, clinger.”

                  Mach Schnell, Jüdische Schweine

                  1. Why do most American Jews reject the Republican Party?

                    1. Because they’re not Jews. They’re liberals who cloak their preexisting liberalism with a veneer of Judaism.

        2. Arthur has serious issues with Jews.

          1. What are they?

            Other than my lack of respect for Jews who emulate other half-educated yahoos by flouting a virus with aggressive ignorance and lethal recklessness? Those Jews should act responsibly, in my judgment, which seems to outrage some clingers.

            1. Didn’t you used to want to forcibly resettle the Jewish population of Israel in Arizona or something like that?

              1. I proposed consideration of offering American citizenship to every Israeli or of making Israel a state. That seemed to rile some disaffected right-wing bigots who responded by calling me a bigot, likely consequent to poor education.

      2. Phailing Phil spoke to the rabbis. Let’s not forget thougfh….Phailing Phil also closed down shuls.

        1. Many of which were acting irresponsibly.

          Murphy is not perfect. But he is a lot better than Cuomo.

          1. marginally better….not a lot better. Let’s remember, Phailing Phil phucked up and managed to kill thousands of elderly nursing home patients with his utter incompetence.

  2. The Ballad of the Belligerently Ignorant Virus Spreaders . . . Superstition (Lethally Reckless Remix) . . . South Texas Clinger Blues . . . probably not very popular tunes in New York.

    Here’s one everyone can dance to on the final Tuesday of October . . .

    1. Now your into anti-semitism. There’s lots of good material for you, now that we have the internet. There was a guy about 80 years ago named Joeseph Goebbels who had lots of great material for you. He also had a friend name Julius Streicher. Between the two, that ought to give you hundreds of posts.

      Oh, and don’t think we didn’t notice that your repeated appeals to science and reason are a complete crock. Neither science nor reason supports Cuomo’s orders. He openly admits it is based on fear. The two gentlemen I referenced above also thought they were following “science.”

      1. Look . . . the racists, gay-bashers, and xenophobes found a horn to sound!

        1. Now we’re back to Johnny One-Note.

          Hit it, Judy:

          1. You like music? Here’s a good tune . . . I spotted Bored Lawyer briefly in it, at about 2:22.

    2. Kirkland you are the typical yellow dog, echoing whatever your masters tell you to believe.

  3. Looks like classical bigotry to me … attaching guilt to an entire group of people based on similar clothing and mannerism.

    I assure you all that this will not end with these Jews. It never has before.

    1. I attach guilt to everyone who exhibits strident ignorance and dangerous recklessness with respect to a pandemic. If their stupidity derives from superstition of any flavor, that doesn’t make the stupidity better or worse.

      1. Yeah, I don’t particularly care what you do until you decide to string together a coherent argument.

        1. What is your argument, clinger — that reckless knuckle-draggers flouting a virus during a pandemic deserve a pass because they claim to be religious?

      2. Those superstitious Jews, causing problems for the greater society. We should ban their weird religious ceremonies for the greater good.

  4. The Becket Fund is ironically misnamed. Becket was not in favor of religious liberty; he believed in torturing heretics and oppressing Jews.

    He also wanted sexually abusive priests to be tried in the ecclesiastical courts, not in the secular courts. That was the issue for which he was martyred. No bishop would dare advocate for that today.

  5. I guess I can only applaud you wasting your time arguing against the very definition of a proportionate interference with the freedom of religion if it stops you writing any more sycophantic posts about Amy Coney Barrett…

  6. So, uh… forgive me, I am not very familiar with litigation undertaken almost solely for the purpose of raising one’s profile in the right-wing mediasphere. But is this standard of argument… typical? Because it seems to me that you have slapped together a number of disparate statements by Cuomo in order to make a sloppy inference that Cuomo’s actions are somehow motivated by religious bias. You literally have a paragraph where you attribute a policy position to Cuomo by stitching together two- and three-word phrases together with some editorializing in between. Is this advocacy? What judge isn’t going to roll their eyes over this clear hackery?

    It would have seemed to me that a more compelling case might have been made if you’d compared the areas receiving Cuomo’s crackdown treatment with other areas within New York experiencing the same coronavirus trends but not getting the same treatment. Is there a reason you don’t draw that comparison? The fact that Cuomo is responding to a “threat” that other states wouldn’t respond to, or targeting institutions that may or may not play a big role in promoting the spread of the virus, doesn’t seem like it’s, precisely speaking, relevant.

    He’s within his rights to decide how best to respond to outbreaks. He’s not within his rights to decide that outbreaks in religious communities require stricter enforcement than non-religious communities. Why aren’t you making that argument?

    Is it, perhaps – ahem – that you can’t make it?

    1. Why don’t you read the TRO brief, which he links to.

      1. That brief (like just about everything I have observed to be associated with Prof. Blackman), is a downscale, hollow display of partisan polemics — popular among clingers, irrelevant outside the clingersphere.

        1. As usual, all ad hominem, no substance. We will see what the district judge, who already once enjoined the Governor of NY in a prior case, does with this motion.

          1. Filing in the Northern District seems a worthwhile move . . . the less educated the judge, the less modern the community, the better chance this will have at the district court level.

          2. It’s an easier case to say that a rule can’t shutter churches while permitting gatherings of a similar size with certain safety restrictions in place.

            Here, the argument is this confused mess of hand-waving. There is supposed to be religious discrimination here because Cuomo has distinguished between private schools and other non-essential businesses, in neighborhoods with a higher COVID prevalence rate than other neighborhoods. How do we “prove” it? Well, here are a couple of dozen times that Cuomo acknowledged the existence of the Jewish community. Nobody is going to be convinced by this reasoning, save those already committed to its conclusion.

  7. Professor Blackman…Congratulations! I just read how Governor Stunod (Cuomo) has reversed his policy. Well done.

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