The state had already allowed some churches in the state to hold services at 33% indoor capacity, where that particular jurisdiction had reached phase IV of reopening. Churches in other areas have been allowed to offer Mass at 25% capacity.
New York City, currently in the second reopening phase, had allowed some indoor offices, retail stores, and salons to operate at 50% capacity while churches were restricted to 25% capacity.
Judge Sharpe on Friday said that those businesses are “not justifiably different than houses of worship” in the risk they pose to the spread of the virus.
Furthermore, state officials showed preferential treatment by allowing or even encouraging mass outdoor protests and 150-person outdoor graduation ceremonies, while subjecting religious gatherings to ten or 25-person outdoor gathering limits, he said.
Governor Cuomo and Mayor de Blasio have both appeared to condone or even encourage mass outdoor anti-racism protests attended by hundreds and thousands of people in recent weeks, despite strict state limits on the size of outdoor gatherings to 10 or 25 people.
On June 2, de Blasio defended his selective enforcement of gathering restrictions, saying that "[w]hen you see a nation, an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism, I'm sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services.”
By their words, Cuomo and de Blasio endorsed “what they knew was a flagrant disregard of the outdoor limits and social distancing rules,” the judge said, thus sending “a clear message that mass protests are deserving of preferential treatment.”
They could have verbally discouraged or remained silent on the protests while suspending any enforcement of outdoor gathering restrictions, Judge Sharpe said, and thus could have remained within the law.
Christopher Ferrara, special counsel for the Thomas More Society, stated that Judge Sharpe “was able to see through the sham of Governor Cuomo’s ‘Social Distancing Protocol’ which went right out the window as soon as he and Mayor de Blasio saw a mass protest movement they favored taking to the streets by the thousands.”
Lawyers from the Thomas More Society originally brought the lawsuit on June 10, on behalf of three Orthodox Jewish congregants from Brooklyn and two priests of the Society of St. Pius X, a group in irregular communion with the Catholic Church, which operates independently of the dioceses of the state, and does not recognize the local bishops' authority.
The lawsuit charged that Cuomo, state attorney general Letitia James, and de Blasio all violated religious freedom, free speech, and due process in their public health restrictions during the pandemic.
The state and city put more burdensome restrictions on churches than they did on some businesses and mass protests, the lawsuit alleged, creating “a veritable dictatorship” where they “selectively enforced ‘social distancing’ under a ‘lockdown’” in the state, while carving out “numerous exceptions” in line with “their value judgments.”
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De Blasio has on multiple occasions during the pandemic threatened houses of worship with fines, permanent closure, and mass arrests if they would not comply with public health orders.