Pandemic fallout: N.Y. man sues Gov. Cuomo over inability to gather, observe Jewish faith

Written by Derek Monson

April 3, 2020

Last week New York resident Lee Nigen sued New York Governor Andrew Cuomo in federal court for “violating his right to free speech and ability to observe his Jewish faith because of the state’s ban on large gatherings due to the coronavirus.” Nigen also argued that New York’s limitation on travel violates his First Amendment right to associate with clients, family and friends.

Effectively, the lawsuit is asking the courts to decide whether New York’s coronavirus pandemic response strikes the right balance between the compelling interest of public health in a pandemic and the constitutional requirement to protect religious freedom.

Last week, Sutherland religious freedom policy fellow William Duncan explored the question of whether states can order churches to close as part of their response to the coronavirus pandemic, analyzing various legal precedents and arguments to come to an answer. Here’s the short version of that answer:

Currently, churches and all other organizations are being asked not to host gatherings. This is likely to be allowed under the current interpretation of Free Exercise in the First Amendment. … This does not mean there are no limits on what the government can do. What if a government were to order churches, and only churches, to close? … This order would almost surely be held unconstitutional.

The New York order applies to churches and non-churches alike, so it would seem likely to be held constitutional on these grounds. However, judges do sometimes rule in unexpected ways, so there is a chance (albeit probably a small one) that this case might turn out differently.

Additionally, because this is a federal court case, it could eventually rise to the U.S. Supreme Court, in which case it could impact the entire nation. Imagine what it would mean for public health and for the lives of millions if state and local public health directives or orders to restrict nonessential travel or ban large public gatherings during a pandemic could not be applied to churches. This outcome does not seem likely based on past legal precedent, but it is what’s at stake in this court decision.

Because of the lengthy process of obtaining federal court rulings and getting through appeals, we likely will not have a final court decision on this case until long after the current pandemic has subsided. Only time will tell what impact it will have on future public health crises.

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