WINDSOR TERRACE — The Diocese of Brooklyn went to federal court for the second time in a week to try to overturn strict new regulations imposed by Gov. Andrew Cuomo on houses of worship in COVID-19 hot spots.
Judge Nicholas Garaufis presided over a hearing on Oct. 15 on the diocese’s request for a preliminary injunction against Cuomo. Randy Mastro, the attorney representing the diocese, had requested an expedited hearing.
The judge did not render a decision on the case but instead requested additional information from Cuomo’s attorney, Seth Farber, on changing COVID-19 positively rates in hot spots, explaining that he would need the information as he considered whether to grant the preliminary injunction or not. He ordered Farber to provide the information by 9 a.m. on Oct. 16.
The judge said he hoped to have a decision before the weekend.
Gataufis noted during the four-hour hearing that Cuomo stated in a press conference that same morning that COVID-19 positivity rates had fallen below 5 percent in the so-called red zones, areas of Brooklyn and Queens where clusters of cases had been found in September.
The judge said he wants more detailed information on that and added that it is important because it might cause New York State to lighten its strict rules governing attendance at religious services in houses of worship in red zones.
Cuomo’s restrictions limit attendance at religious services to 25 percent capacity with no more than 10 people — a limit the diocese charged is outrageous given that many churches have room for 800 people. Many churches in red zones closed on Sunday rather than hold Masses for only a small handful of parishioners.
But under questioning from Farber, Byron Backenson, a research scientist from the New York State Department of Health, said the rates might be going down precisely because of the governor’s strict regulations.
Backenson, who was the only witness for the defense, said it appeared that the restrictions the governor imposed were having an impact.
Randy Mastro, the attorney representing the diocese, and his two co-counsels, Akiva Shapiro and William Moccia — all from the law firm of Gibson, Dunn & Crutcher — presented two witnesses at the hearing. Auxiliary Bishop Raymond Chappetto, the vicar general for the diocese, and Joseph Esposito, the former commissioner of the New York City Office of Emergency Management, testified for the diocese.
Esposito chaired a committee put together by Bishop Nicholas DiMarzio to come up with recommendations on how churches could reopen safely after they were permitted to reopen in the spring following a four-month closure at the start of the pandemic.
Mastro sought to establish in court that the Cuomo’s rules were overreaching for three reasons: 1) The diocese had already implemented strict safety measure on its own at Masses, including limiting attendance to 25 percent of church capacity, the mandatory wearing of face masks, and the placement of hand sanitizers in all churches, 2) There have been no COVID-19 cases traced back to Catholic churches and 3) The high COVID-19 positivity rates in red ones are mostly attributed to Orthodox Jewish communities and not Catholic churches.
Both Bishop Chappetto and Esposito testified that the diocese put in place strict protocols to ensure the safety of church parishioners and carefully planned those protocols after consulting with medical experts. The restrictions include a limit of 25 percent capacity at Masses.
“We have gone above and beyond,” said Esposito, who added that rather than impose a 10-person limit, Cuomo should have dispatched hundreds of inspectors from the Health Department to root out houses of worship that are violating the rules.
But Bishop Chappetto and Esposito also testified about the emotional impact the restrictions were having on Catholics who miss going to church and receiving Holy Communion.
Holy Communion is “what defines us as Catholics,” Bishop Chappetto said. “It tells us who we are.”
Exposito, a parishioner of St. Athanasius, Bensonhurst, testified that he encountered families crying on the church’s steps last Sunday when they learned the church was closed.
It is possible to watch Masses livestreamed or on television. But it isn’t the same, according to Esposito. “There are people who feel like they really haven’t gone to Mass if they don’t receive Holy Communion,” he said.
The hearing marked a quick turnaround for the diocese, which suffered a setback just one week earlier, on Oct. 9, when a different judge, Judge Eric Komitee, denied a request for a temporary restraining order to stop the governor from implementing the regulations. Garaufis was originally supposed to preside over the Oct. 8 hearing. Komitee heard the case on an emergency basis.
After Komitee’s decision upheld the governor’s right to impose the restrictions, Mastro wrote a letter to Garaufis seeking a new hearing.
Farber sought to establish that while the diocese has put in place safety protocols, all it takes is one person with COVID-19 to spread the virus. He also pointed out that asymptomatic people can spread it. He also repeatedly pointed out that the governor’s restrictions are temporary.
The diocese filed its lawsuit in Brooklyn Federal Court on Oct. 8, charging that the new regulations violated religious freedom.
The governor’s restrictions focus on the number of people allowed to attend religious services in houses of worship in so-called red zone neighborhoods designated as COVID-19 hot spots. In red-zone neighborhoods, only 10 people are allowed to attend religious services.
The governor announced his new rules in response to an increase in COVID-19 positivity cases in certain Brooklyn and Queens neighborhoods. In some neighborhoods, the rate is as high as 5 percent.
While several neighborhoods in Brooklyn and Queens have seen increases in COVID-19 cases, the churches have not seen a spike, according to Bishop Nicholas DiMarzio.
Under the new restrictions, three zones were created — red, orange, and yellow. In red zones, churches and other religious institutions are limited to 25 percent capacity, with no more than 10 people. In orange zones, attendance at religious services is restricted to a maximum of 33 percent capacity with no more than 25 people. In yellow zones, 50 percent capacity would have been permitted at services.
According to the diocese, there are more than two dozen churches and parishes within the red and orange zones.
Cuomo is facing a legal battle on another front.
The Center of American Liberty, in conjunction with the Dhillon Law Group, filed a lawsuit against the governor on Oct. 15 on behalf of Rabbi Chaim Rottenberg, rabbi of Congregation Netzach Yisroel in Monsey, New York, and other Jewish religious organizations.
The lawsuit charges that Cuomo’s decision to impose strict rules on attendance at religious services was “wholly divorced from science-based determinations following the Center for Disease Control’s (CDC) social distancing guidelines.”
All houses of worship in the COVID-19 hot spots fall under Cuomo’s restrictions. Borough Park, a predominantly Orthodox Jewish neighborhood in Brooklyn, has been the scene of several protest demonstrations ever since the rules were imposed.
In Washington D.C., a federal judge granted a preliminary injunction to Capitol Hill Baptist Church on Oct. 9, allowing the church to hold outdoor services for its 850 worshipers. The church took the city to court over a rule limiting the number of participants at outdoor services to 100 people.
