Protests/Religion: Soos v. Cuomo

In a recent post I said that in order to justify its continued COVID-19 restrictions on social, religious and business activities, the government should have to explain why large numbers of individuals (many without masks and most not following social distancing protocols) have been able to assemble to protest police misconduct. I was therefore very interested to see how New York would respond to the lawsuit by two Catholic priests and several Orthodox Jewish congregants challenging the state’s restrictions on religious gatherings. A principal claim of the lawsuit is that by permitting large-scale policing protests the state cannot assert that its regulations are simply based on risk-based considerations and that the state is unconstitutionally disfavoring religion. Yesterday, New York filed its response to the plaintiffs’ application for preliminary injunctive relief. New York asserts that COVID-19 restrictions are based entirely on risk considerations and that it is treating religious gatherings the same as other gatherings that present comparable risks. I therefore read on to learn why protests against police practices do not pose COVID risks or why allowing the protests to proceed does not cast doubt on the constitutionality of restrictions imposed upon other gatherings. Astonishingly, New York says nothing at all about the protests. Nothing in its memorandum. Nothing in the attached declarations that set out the state’s rules and the reasons for them. Indeed, the word “protest” does not appear in any of the state’s submissions. It is hard to imagine the state’s lawyers didn’t see this aspect of the plaintiffs’ case or that the state is just conceding that it has no legal basis for treating policing-related protests differently from other gatherings. Ignoring the central claim of a lawsuit is a very peculiar litigation strategy. Argument is scheduled for tomorrow at 1 pm. Let’s see what New York has to say for itself.