Brooklyn Bishop Cries Foul Over Cuomo’s COVID Rules
After the New York governor’s executive order restricted Catholic worship and closed schools that had followed health protocols, the Brooklyn Diocese continues to fight the order in court.
BROOKLYN, N.Y. — Seven months after the first COVID-19 outbreak hit the New York City area last spring, Msgr. David Cassato, the pastor of St. Athanasius Church in Brooklyn celebrated a key milestone, with the parish church and school both open for business.
That hard-won goal consumed an enormous amount of time and money, with $50,000 alone spent on the restructuring of classrooms in compliance with social distancing guidelines.
But after a fresh spike in COVID transmissions in New York City, Brooklyn and Queens in early October, New York Gov. Andrew Cuomo imposed new restrictions on Oct. 6, and now St. Athanasius School has closed again, while Sunday Masses are limited to 10 people, including the celebrant.
“It has been a trying time,” said the energetic Msgr. Cassato, who is also the pastor of St. Dominic’s Church in Bensonhurst, and was recently appointed vicar of education for the Diocese of Brooklyn. “People need their church, and the children need their school.”
Cuomo issued his latest executive order in response to new virus “hot spots” around the Empire State, and he designated specific areas as “red,” “orange” or “yellow” zones depending on the density of virus cases or their closeness to a cluster.
In red zones, only essential businesses were allowed to remain open, while indoor religious services, classified as “nonessential,” were capped at 10 people. Church services in orange zones were limited to 25 people.
Bishop Nicholas DiMarzio of Brooklyn quickly challenged the governor’s order in federal court, alleging that Cuomo had “arbitrarily” issued sweeping restrictions that would effectively close two dozen churches under his jurisdiction, despite their successful compliance with health guidelines.
But the diocese lost in Brooklyn federal court, and when it petitioned for a temporary injunction against the governor’s order in another court, it was turned away — a reminder that U.S. courts have favored the government’s position in legal challenges to COVID restrictions.
Bishop DiMarzio has not given up the legal battle against Cuomo’s sweeping order, and is equally determined to challenge the classification of a church or synagogue as a “nonessential” business.
The diocese’s appeal to the lower court ruling is scheduled to be heard Nov. 3 in the U.S. Court of Appeals for the Second Circuit.
At the beginning of the pandemic, “we knew we had to close down,” because of the “danger” posed by virus transmission, Bishop DiMarzio told the Register.
“We have evolved,” he said. “The more we understand about the coronavirus the more we are convinced that we can hold religious services safely.”
Eager to get his flock back to Sunday Mass, the bishop said he spoke regularly with Cuomo, making the case that Brooklyn Catholic churches should be exempted from the executive order.
“If I believed we were going to be a superspreader situation I would not push to open the churches,” said Bishop DiMarzio. “I don’t believe, with all the evidence, we are a danger to people.”
Frustrated Parishioners and Parents
For now, the impasse has left pastors like Msgr. Cassato with few options, and local parishioners and Catholic school parents frustrated with the governor.
“I don’t see why Gov. Cuomo won’t allow people to worship in a church when we are doing everything he has asked us to do,” Ginger Bivona, age 81 and a longtime parishioner who was baptized in the parish, told the Register.
Bivona said it was impractical and unjust to cap Sunday Masses at 10 people, when her own family included that number. And she worried that seniors in the parish were suffering the most.
“I feel the governor is almost being anti-Catholic,” she added, while expressing gratitude for her pastor’s tireless service to the parish and school community throughout the pandemic.
“Msgr. Cassato has done all the right things to keep people safe and yet we can’t worship God,” said Bivona. “I support the bishop’s lawsuit.”
Elizabeth Durante, a single mother with two children in the parish school, was disheartened to learn that her two daughters, who had thoroughly enjoyed their return to the classroom and the chance to reunite with friends in September, would be back at home after just a few weeks.
“There were no new COVID transmissions, and the school did everything it was supposed to do,” she said, noting that the school’s Facebook page had posted videos of the sanitization process and other measures designed to protect students and teachers.
“But the school still had to close.”
The outcome worries this young mother, who supported the school’s online instruction in the spring, but reached the conclusion that digital apps and platforms were no substitute for “sitting in a classroom and having a relationship with your teacher.”
“The girls were making a lot of progress in September, and now they are going to slide again,” she said.
Of equal importance, Durante had hoped to use the school day to look for a new job, after her food services position closed permanently following the area’s lockdown that begin in the spring. But online instruction requires parental support, and she fears there won’t be sufficient time to job hunt, ratcheting up her anxiety about family finances.
Low Transmission Rates
Indeed, infectious disease experts have begun to challenge the decision to keep elementary schools closed this fall, pointing to a slew of studies that show low transmission rates at schools. In one widely circulated study of “200,000 kids across 47 states from the last two weeks of September,” The Wall Street Journal reported, the median COVID-19 case rate stood at “0.13% among students and 0.24% among staff.”
Hospitalization and death rates are also dramatically lower for children infected by the virus as opposed to the flu.
Dr. Tim Flanigan, a Catholic deacon and an infectious disease expert at Brown University’s Alpert Medical School, told the Register that epidemiologists “now have an enormous amount of experience on transmission rates, and elementary schools are not associated with outbreaks of increased transmission.”
Deacon Flanigan further noted that when CDC guidelines regarding masks, social distancing and hand washing are consistently adopted, church services do not pose a greater threat to public health.
Nevertheless, Cuomo still defends his controversial executive order as a legitimate response to a reported 8% increase in COVID transmissions in parts of New York City, Brooklyn, and Queens. And as local news outlets flag outbreaks of the coronavirus in areas with large Orthodox Jewish populations, the New York Catholic Conference has argued that Catholic churches have been swept up in the government’s efforts to address problems arising in just a few Orthodox Jewish congregations.
“Gov. Cuomo is using an overly broad approach to a very specific problem, namely the lack of compliance with masking and social distancing protocols by a few ultra-Orthodox Jewish congregations,” Dennis Poust, a spokesman for the conference, told the Register in an email exchange.
“By effectively closing all houses of worship without evidence of transmission,” Poust said, “he is sending a false message that churches, synagogues and mosques are unsafe. This is not true.”
Meanwhile, other religious groups have also challenged Cuomo’s order.
Agudath Israel of America, a national Orthodox Jewish organization, filed suit, alleging that the order imposed an especially heavy burden on their community’s right to worship, as their religious teachings bar travel on holy days, and they would be prevented from visiting other synagogues that remain open for services during three Jewish holidays.
A federal court dismissed that lawsuit, as well.
Another legal challenge filed by Yitzchok and Chana Lebovits, who send their daughters to Bais Yaakov Ateres Miriam, an Orthodox Jewish school for girls in Queens, and alleged that the governor had discriminated against the school by shutting it down without evidence of COVID transmission, was effectively resolved as public health restrictions in Queens were loosened.
The Lebovits family was represented, in part, by Becket, the public interest group that previously represented EWTN, the Register’s parent company in its 2012 legal challenge to the Health and Human Services’ contraceptive mandate.
Becket reported that the Lebovits’ lawsuit featured “a recording of a conversation Governor Cuomo had with a group of rabbis in which he acknowledged that the policy was not tailored, was cut by a ‘hatchet,’ and was driven by fear.”
“This was the worst kind of unscientific and harmful scapegoating, as the Governor himself knew that schools weren’t a problem,” said Mark Rienzi, president of Becket and counsel to the Lebovits family, in a statement.
Unwillingness to Intervene
Yet truth be told, it has been tough for churches and schools to convince federal judges that overly broad COVID lockdowns violate constitutionally protected free exercise rights.
Even when plaintiffs appeal lower court decisions to the U.S. Supreme Court, said Gerard Bradley, a constitutional scholar at University of Notre Dame Law School, a majority of justices have “been unwilling so far to intervene on behalf of religious assemblies closed or limited by order of local or state authorities.”
The high court “has declined to consider appeals for emergency relief filed by churches.”
That said, Bradley noted that Justices Alito, Kavanaugh and Thomas have dissented from the majority opinion.
“They would have intervened in one Nevada case, where the governor permitted casinos to host thousands of customers, but churches no more than fifty.”
Bradley doesn’t expect a majority of the justices to register support for legal challenges to COVID restrictions anytime soon, even with the new addition of Justice Amy Coney Barrett.
At the same time, he expressed regret that “the pattern across the country concerning religious assemblies and COVID restrictions reveals a general devaluation of religion by public authorities.”
Likewise, he is frustrated with what he described as a tendency of many government officials to issue sweeping restrictions when COVID transmissions surge, instead of targeting places that failed to comply with protocols.
These officials “do not want to be seen laying burdens on one or two groups, so they dump all the churches into the same boat,” he suggested.
Instead, they should “make the hard but necessary decision to act against those assemblies which the evidence shows have become a COVID hot-spot,” he said, “and leave the worship of every other group undisturbed.”
Back at St. Athanasius, Msgr. Cassato ministers to his flock, and prays for a respite from the latest COVID surge by early November.
“It is heartbreaking when you see people trying to pull the church doors open on Sunday for Mass, and parents frustrated because they want the children back in school,” he said.
“One thing I have done more than anything is pray,” he said. “The pandemic has made me pray more than at any time in my life.”