Diocese Lawsuit: Restrictions Violate Religious Freedoms

WINDSOR TERRACE — The Diocese of Brooklyn’s federal lawsuit against Gov. Andrew Cuomo over regulations he imposed on houses of worship in COVID-19 hot spots is at the center of several fast-moving developments.

After initially having a request to overturn the restrictions denied on Oct. 9, it was learned on Oct. 13 that the diocese’s efforts were getting another look.

The diocese suffered a setback in Brooklyn Federal Court on Oct. 9 when Judge Eric Komitee ruled against the diocese, denying a request for a temporary restraining order to stop the governor from implementing his new regulations. The diocese had charged in its lawsuit that the new regulations violated religious freedom.

As it turns out, Komitee only heard the case on an emergency basis. Another federal jurist, Judge Nicholas Garaufis, was originally supposed to preside over the hearing. After the initial decision, the diocese’s attorney, Randy Mastro of the law firm Gibson, Dunn & Crutcher, wrote a letter seeking a new hearing. The new hearing was scheduled for Oct 15.

“I am pleased that our case will move forward because going to church should absolutely be considered essential,” Bishop Nicholas DiMarzio said in a statement. “We should not be grouped with non-essential services like theaters and recreational facilities, especially when you consider the Diocese of Brooklyn has been operating safely for months at a 25 percent capacity and has not had any issues because our faithful know that only with a mask can they attend Mass as well as strict adherence to all of our social distancing protocols.”

The bishop added he hopes the limits Cuomo mandated in the red and orange zones will not stand.

“I am hopeful we will not have to close or turn people away in the 28 churches in the red and orange zones. All we are seeking is for our faithful of Brooklyn and Queens to be allowed back to church and the ability to receive the Holy Eucharist,” Bishop DiMarzio added.

Officials in the diocese said they planned to move forward with the case in front of the original judge, Garaufis, who issued an order granting the diocese’s request for an expedited hearing on its request for a preliminary injunction to reopen the churches. The diocese and its attorneys had high hopes going into the new hearing.

“We look forward to presenting our case to Judge Garaufis, demonstrating that the Diocese has done everything right to provide a safe, COVID-free environment for worship and should therefore be permitted to reopen its churches for Mass,” Mastro said in a statement.

The diocese had already been exploring its legal options following the Oct. 9 decision by Komitee.

“We thought we had a good case,” Bishop Nicholas DiMarzio said at a press conference on Oct. 10.

The diocese filed its lawsuit against Cuomo, in his official capacity as governor, on Oct. 8. In addition to the religious freedom aspect of the case, the diocese also charged that the new restrictions Cuomo mandated for attendance at services at houses of worship were too strict.

In his ruling, Komitee wrote that Cuomo had the right to impose the restrictions. “Under Supreme Court precedent, the right to freely exercise one’s religion does not exempt worshipers from compliance with ‘neutral, generally applicable regulatory law(s),’ ” the judge wrote.

The lawsuit was filed in reaction to an Oct. 6 announcement by Cuomo of a new program, called the New Cluster Action Initiative, in response to an increase in COVID-19 positivity cases in Brooklyn and Queens neighborhoods. In some neighborhoods, the rate is as high as 5 percent.

Under the New Cluster Action Initiative, three zones were created — red, orange, and yellow — with red zones falling under the most severe restrictions.

In red zones, attendance at religious services is limited to 25 percent capacity, but with no more than 10 people. There are 14 churches in the diocese that fall within red zones.

Pastors might feel it isn’t worth holding public Masses if only 10 people can attend, according to Bishop DiMarzio. The number is really nine people since the priest celebrating the Mass would be counted among the participants, he said.

“Can we shut the doors after nine people?” the bishop said at his press conference.

A better way, the bishop said, would have been for the governor to limit the capacity in proportion to the size of a church. Many churches in the diocese have room for 800 or more worshipers. Prohibiting more than 10 people from attending Mass in a large church where social distancing can be safely practiced is going too far, according to the bishop.

Bishop DiMarzio noted that the diocese put in place several safety protocols to reduce the spread of COVID-19 and that those measures have worked. In orange zones, attendance at religious services is restricted to a maximum of 33 percent capacity with no more than 25 people. There are 13 of these Catholic churches in Brooklyn and Queens.

In yellow zones, houses of worship will be permitted 50 percent capacity during religious services.

Meanwhile, the dispensation issued by the bishop in March freeing Catholics in the diocese from the obligation to attend Mass in person will continue. The bishop said he has no plans to remove it at this time.

The Diocese of Brooklyn is just one of the entities that took the governor to court over the regulations. On Oct. 9, a different federal judge sided with Cuomo in a lawsuit brought by Agudath Israel of America, a coalition of Orthodox Jewish organizations that is also seeking to overturn the rules on attendance at religious services.

Komitee wrote in his ruling that Cuomo’s restrictions did not appear to be aimed at the Diocese of Brooklyn but other religious institutions and that the diocese was likely “swept up” in the effort to control the spread of COVID-19 in those other religious communities.

The judge also noted that in an appearance on CNN Newsroom with Poppy Harlow and Jim Sciuttto on Oct. 9, Cuomo stated that “the cluster is a predominantly ultra-orthodox (Hasidic) community” and that “the issue is with that ultra-orthodox community.”