WINDSOR TERRACE — The Diocese of Brooklyn is taking Gov. Andrew Cuomo to court.

The diocese has filed a federal lawsuit against the governor in his official capacity and is seeking an injunction to prevent him from enforcing new rules prohibiting more than a small handful of people from taking part in religious services in so-called red zones that have been designated as COVID-19 hot spots.

In its lawsuit, the diocese charged that the restrictions imposed by Cuomo through his New Cluster Action Initiative violate First Amendment rights. The governor announced his initiative on Oct. 6. The new measures are to go into effect no later than Oct. 9.

Under Cuomo’s directive, three zones are being created — red, orange, and yellow — with red zones falling under the most severe restrictions. 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 will be permitted at services.

There are 28 churches and parishes within the red and orange zones.

Bishop Nicholas DiMarzio said the diocese had no choice but to sue. “The executive orders this week have left us with no other option than to go to court. Our churches have the capacity to accommodate many worshippers and to reset our attendance capacity to 10 people maximum in the red zone, and 25 people in the orange zone, when we have had no significant cases, impede our right to worship and cannot stand,” he said in a statement.

“The state has completely disregarded the fact that our safety protocols have worked and it is an insult to once again penalize all those who have made the safe return to church work,” the bishop added.

“This case concerns the government’s wholesale infringement of a fundamental First Amendment right — the free exercise of religion — that, if allowed to stand, will prevent parishioners in Brooklyn and Queens from being able to attend mass even though the executive order at issue is not even remotely tailored to the compelling interest required to justify interference with that fundamental right,” the lawsuit reads in part.

The filing of the lawsuit was announced on Oct. 8.

In an interview with Current News, Randy Mastro, the attorney representing the diocese, said he hoped for quick action by the court so that parishioners can attend Masses at their local churches this Sunday. “We hope to be before a judge tomorrow,” he said on Thursday.

“Public officials have a sacred duty to do right by those they serve, but this is simply wrong and wrong-headed,” Mastro said in a statement. “If this latest executive order stands, parishioners won’t be able to go to Mass this Sunday, even though the diocese has done everything right to ensure safe conditions in its churches. Thus, this religious community will be denied its most fundamental right — the free exercise of religion — and that is why we’ve gone to court to block this executive order from going into effect as applied to the diocese’s churches.”

The diocese charged that the governor’s order “is clearly untailored as applied to the diocese given the starkly different consequences the order imposes on secular business, allowing, for instance, hundreds of people to shop at a grocery store but limiting worship in a 1,200-seat church to a mere 10 parishioners (nine including clergy).”

In addition, the lawsuit contends that Cuomo is unfairly imposing the restrictions on all religious institutions, even those, like the diocese, who have obeyed social distancing rules.

“And yet this delicate balance between religious liberty and public health and safety has now been upended by the governor’s broad-brush response to combating apparent pockets of COVID-19 spikes in some faith communities by imposing on all faith communities in the affected areas disparate treatment—whether or not those communities have been compliant with the preexisting rules and operating safely, as the diocese’s churches have,” the lawsuit reads.

Technically speaking, the governor’s rule allows up to 25 percent of a church’s seating capacity to be filled in a red zone. But the rule also states that no more than 10 people can attend a service.

All houses of worship in New York State were ordered closed in March as the COVID-19 pandemic took hold in New York.

In the lawsuit, the diocese points out that it not only obeyed the state’s original closure order in March but had already put in place its own severe restrictions before the state issued its order.

“This period of closure was extremely painful for the Diocese of Brooklyn and its faith community.” the document reads. “In addition to the physical and emotional toll that the pandemic took on the community, parishioners were denied the ability to attend in-person Mass, which is of critical spiritual importance in the Catholic faith. Likewise, the cancellations or severe curtailments of baptisms, weddings, funerals, and other ceremonies of enormous religious and personal significance was difficult for many members of the Catholic faith. Nevertheless, the Diocese abided by the State’s severe restrictions — and imposed its own exacting restrictions on its various parishes, even in advance of the state mandate to shutter — because doing so was in the best interest of the health and welfare of the diocese’s community.”

Once the state lifted its closure order, the diocese reopened its churches but only after careful planning and safety measures implemented by a special committee organized by Bishop DiMarzio and headed by Joseph Esposito, the former commissioner of the New York City Office of Emergency Management.

The lawsuit outlines the measures put in place by the bishop at the recommendation of the committee, including adhering to social distancing, the mandatory wearing of face masks, and making hand sanitizers available

Many churches have room for 800 or more people and can still safely allow for social distancing, Bishop DiMarzio said in a recent interview. 

“Our churches are so large,” he said. “We still can be a safe harbor.”

While several neighborhoods in Brooklyn and Queens have seen increases in COVID-19 cases, the churches have not seen a spike, according to the bishop.

The diocese lawsuit is part of a trend of religious freedom suits across the country.

Father Trevor Burfitt, a priest in charge of mission churches in four counties in California — Kern, San Bernardino, Los Angeles San Diego — filed a lawsuit against California Gov. Gavin Newsom in Kern County Superior Court on Sept. 29.

The Capitol Hill Baptist Church filed suit against the city of Washington D.C. and Mayor Muriel Bowser on Sept. 22. The U.S. Department of Justice is siding with the church in the legal matter. The DOJ filed a document known as a “statement of interest” in the case.

The Thomas More Society filed a lawsuit on Aug. 12 against Gov. Newsom on behalf of Grace Community Church in Los Angeles. The lawsuit contends that attendance restrictions should not be placed on churches because the government did not place restrictions on protest demonstrations.

The Thomas More Society also filed a lawsuit against Minnesota Gov. Tim Walz over the rule mandating that churchgoers wear face masks.