The federal appeals court in Manhattan on Monday struck down New York Gov. Andrew Cuomo’s pandemic-related executive order setting capacity limits at houses of worship –because it “discriminates against religion on its face.”

The three-judge panel on the US Court of Appeals for the Second Circuit unanimously sided with the Roman Catholic Diocese of Brooklyn, the Orthodox Jewish group Agudath Israel of America and two synagogues who had sued Cuomo over the Oct. 6. attendance caps.

“The restrictions challenged here specially and disproportionately burden religious exercise,” and violate the Free Exercise Clause of the First Amendment, Circuit Judge Michael Park wrote in the ruling.

“We conclude that [Cuomo’s] Order discriminates against religion on its face.”

The governor had limited religious gatherings to fewer than 10 people or 25 percent capacity in “red” zones, where the risk of COVID-19 was highest, and to 25 people or 33 percent capacity in slightly less risky “orange” zones.

The plaintiffs argued that the restrictions trampled on their religious rights, causing them “irreparable harm,” and unfairly targeted them while businesses deemed essential were allowed to operate.

The court agreed, with Park, a President Trump appointee, noting that: “No public interest is served by maintaining an unconstitutional policy when constitutional alternatives are available to achieve the same goal.”

The decision came about a month after the U.S. Supreme Court issued a temporary injunction blocking the capacity limitation order from being enforced.

The majority of the court had said the restrictions “strike at the very heart of the First Amendment’s guarantee of religious liberty,” and that “even in a pandemic, the Constitution cannot be put away and forgotten.”

At the time, the governor said the ruling was “irrelevant” since some of the restrictions were lifted as COVID-19 outbreaks in the areas in question eased.

“It’s irrelevant of any practical impact because of the zone they were talking about is moot. It expired,” the governor said, adding, “It doesn’t have any practical effect.”

“That situation just doesn’t exist because those restrictions are gone.”

Still, the plaintiffs hailed Monday’s ruling, with Avi Schick, a lawyer for Agudath Israel, saying the decision “will be felt way beyond the COVID context.”

“It is a clear statement … that government can’t disfavor religious conduct merely because it sees no value in religious practice.”

The diocese, meanwhile, was “gratified” by the ruling, and will welcome parishioners to mass “under strict protocols” that keep them safe, said its attorney, Randy Mastro.

Cuomo’s office didn’t immediately respond to requests for comment.

Additional reporting by Carl Campanile



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