NEWS
Court Upholds Agudath Israel Challenge to New York State Rules
by Dei'ah Vedibur Staff
In a major victory for religious freedom, the United States Court of Appeals for the Second Circuit on December 28 issued a decision in two cases, Agudath Israel of America v. Cuomo and Roman Catholic Diocese of Brooklyn v. Cuomo, upholding challenges against New York State's restrictions on attendance at houses of worship during COVID-19.
The Court of Appeals ordered the federal district court to issue a preliminary injunction prohibiting the state from enforcing the 10 and 25 person attendance limits at houses of worship in the "red" and "orange" zones, respectively. It also ordered the district court to consider whether the 25% and 33% capacity restrictions in red and orange zones also violated the Free Exercise Clause of the First Amendment to the United States Constitution.
Agudath Israel originally sought an injunction from the federal district court, and then the Court of Appeals for the Second Circuit, which would have prohibited the state from enforcing the house of worship attendance restrictions. After the courts denied these requests, Agudath Israel (as well as the Roman Catholic Diocese of Brooklyn) appealed to the United States Supreme Court regarding the 10 and 25 person limitations. The Supreme Court, by a vote of 5-4, agreed with Agudath Israel and granted a preliminary injunction.
The litigation then proceeded in the Court of Appeals for the Second Circuit. In that litigation, Agudath Israel also challenged the "percentage capacity limits" which restricted attendance at houses of worship to 25% of maximum capacity in a red zone and 33% of capacity in an orange zone, in addition to the 10 and 25 person attendance limits of the state's original executive order.
The Second Circuit Court of Appeals in the ruling issued today agreed with the Supreme Court that the state's executive order imposes greater restrictions on religious activities than on secular ones, and therefore violated the First Amendment. The Court then ordered the district court to issue an injunction preventing the state from enforcing the 10 and 25 person limits.
The Court further stated, with regard to Agudath Israel's challenge to the state's 25% and 33% capacity limits, that the case should be remanded to the district court to consider whether those limits also violate the Constitution, in light of the Supreme Court's decision and the Second Circuit's decision barring the state from enforcing the 10 and 25 person limits, and the lack of any evidence from the state as to where the specific percentage capacity limits came from. Because the state was treating religious gatherings more strictly than similar secular ones, said the court, its policy must be subjected to "strict scrutiny" — the highest level of constitutional protection available under the law.
Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel of America, praised the Court's decision as further vindication of religious rights. "The courts have clearly recognized that the restrictions imposed by New York State violate the constitutional rights of those seeking to attend religious worship services," he said. "Agudath Israel continues to encourage everyone to mask and to maintain social distancing, and we are certain that this is possible without threatening the religious liberties that our country holds dear." He thanked Avi Schick and his colleagues at the law firm of Troutman Pepper Hamilton Sanders for their extremely capable and successful advocacy of Agudath Israel's case.
Michigan Court
After a multi-year effort for nonpublic school reimbursement that was led by the Michigan Catholic Conference and the Michigan Association of Nonpublic Schools, who were joined by Agudath Israel of America and others, in a split 3-3 decision issued on December 29, the Michigan Supreme Court upheld the constitutionality of a 2016 law reimbursing nonpublic schools for complying with state mandates. Agudath Israel had filed an amicus curiae ("Friend of the Court") brief in this case and had previously joined a brief together with other organizations in 2016 when the Michigan Supreme Court was asked for an advisory opinion, but declined.
The Agudath Israel brief argued that the provision in the Michigan state constitution that prohibits state aid to nonpublic schools was adopted primarily due to anti-Catholic bigotry, and should be struck down. It also stated that nonpublic school reimbursements for mandated services are constitutional and that denying such benefits to religious schools would be a violation of the Free Exercise Clause of the US Constitution.
The three judges affirming the Court of Appeals ruling did not rule on the constitutionality of the state's constitutional amendment that bars aid to religious schools, but noted recent developments "may conceivably warrant consideration in a future case addressing the constitutionality of that amendment." They also referenced three recent United States Supreme Court cases including last month's Roman Catholic Diocese of Brooklyn v Cuomo, in which Agudath Israel of America was a plaintiff.
The Michigan Legislature appropriated more than $5 million for the reimbursement program between 2016 to 2018, but the funding was held back by a court injunction pending a ruling. The split decision means that the favorable Court of Appeals ruling stands and the case returns to the Court of Claims to decide if the Department of Education properly limited the program to non-educational services.
"The overdue Supreme Court decision is great news for nonpublic schools in Michigan and the families they serve," said Rabbi A. D. Motzen, Agudath Israel's national director of state relations. "We hope this ruling is the first step to eventually overturning Michigan's ban on nonpublic school aid."
The nation's first mandated services program was established by the New York State Legislature in 1974, thanks to the pioneering efforts of Rabbi Moshe Sherer of Agudath Israel of America and other nonpublic school advocates.
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