Justice Department: NYC pandemic rules can't favor protests over religious services

Washington D.C., Jun 23, 2020 / 15:18 pm

New York City cannot enforce coronavirus restrictions strictly on religious gatherings and leave mass public protests untouched, leading U.S. Department of Justice officials said in a letter to New York City Mayor Bill de Blasio.

"Mayor de Blasio's recent public statements and enforcement of COVID-19 orders have demonstrated a troubling preference for certain First Amendment rights over others," said leading Justice Department officials June 22.

"The Justice Department is glad Mayor de Blasio will now permit greater religious exercise and will continue to monitor New York City's reopening to ensure that New York City extends the same respect to the freedom of religion, both in terms of indoor and outdoor gatherings, as it does to the freedoms of speech and assembly."

The statement came from Assistant Attorney General for Civil Rights Eric Dreiband and U.S. Attorney General Matthew Schneider of the Eastern District of Michigan. They are overseeing the U.S. Department of Justice's monitoring of state and local policies related to the novel coronavirus epidemic.

"New York City had vigorously enforced restrictions on religious gatherings, including by sending police officers to disperse numerous gatherings of the Jewish community, including outdoor funerals," said the Justice Department in its June 22 statement.

"At the same time, Mayor de Blasio marched in large in-person political gatherings concerning the recent tragic death of George Floyd and made statements suggesting - in a manner forbidden by the First Amendment - that religious exercise was less valued and protected by New York City than political exercise."

The New York City mayor's move to Phase 2 of the city's reopening plan began June 21. This phase allows houses of worship to open to 25% of their indoor capacity, after allowing only 10 or fewer attendees under previous rules. This move provided "much-needed relief" for New Yorkers, the Justice Department said, noting that the department's civil rights division had acted in response to the city's treatment of religion.

The Justice Department said a letter to de Blasio from Dreiband last week objected that the city allowed large gatherings for political protest but did not permit in-person religious gatherings.

Dreiband's June 19 letter said the demonstrations in New York raised "several civil rights concerns," while de Blasio's statements and actions "raised substantial concerns about New York City's commitment to evenhanded application of robust First Amendment protections."

The assistant attorney general commended the mayor's support for peaceful public protest, saying "like the people of New York City, and all across our country, we are deeply troubled by the death of George Floyd." At the same time, he said the Justice Department recognizes that the constitution requires "equal treatment under the laws, without regard to race, religion, or other protected traits."

The mayor's executive orders and emergency orders had barred all gatherings larger than 10 persons. At the same time, his June 1 press release voiced his commitment to "support and protect peaceful protest." He allowed thousands of New Yorkers to demonstrate, and took part in a June 14 protest.

"The First Amendment protects religious observers against unequal treatment. Government may not discriminate against religious gatherings compared to other nonreligious gatherings that have the same effect on the government's public health interest, absent compelling reasons," said Dreiband's letter.

Restrictions on places of worship may be consistent with the First Amendment when such restrictions apply to comparable secular gatherings, the letter said.

Initially, both New York State and city orders significantly restricted gatherings, including religious gatherings. By May 22, the mayor's rules had allowed gatherings of 10 or fewer people, provided social distancing protocols and cleaning and disinfection protocols were followed.

As of June 19, the orders still prohibited gatherings of thousands of people for political protest, the assistant attorney general said.

"In light of your support for and participation in recent protests in New York City, the message to the public from New York City's government appears to favor certain secular gatherings and disfavor religious gatherings," said Dreiband.

He encouraged the mayor to "reconsider your posture towards religious gatherings." His letter voiced concern about de Blasio's June 2 comment that the interests of those protesting "is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services."

"Concerns, as you likely know, have been raised in the faith community that New York City is acting to protect certain First Amendment expression over others, which the Constitution forbids," said Dreiband. Enforcement of executive orders or emergency orders should respect "both the right of your residents to assemble to express their views on a diverse spectrum of topics and the right to practice their faith."

"Compliance with the First Amendment is not optional, and that amendment protects both free exercise of religion and assembly rights," said the letter.

While the risk of coronavirus transmission is believed to be lower outdoors, and religious services are typically held indoors, the letter noted that New York City has not limited enforcement to restricting indoor religious gatherings.

Dreiband's letter voiced gratitude for New York City officials' respect for freedom of speech and assembly, and urged de Blasio "to do the same with the freedom of religion."