Sometimes common sense beats a lawsuit over liberties

Unquestionably, New York Gov. Andrew Cuomo has inconsistently enforced COVID-19 measures for religious services and those protesting for justice following the death of George Floyd in Minneapolis.

As the numbers of coronavirus-related deaths first increased, the governor barred public religious services, or any gatherings for that matter, altogether. As COVID-19 hospitalizations decreased, he relented somewhat, allowing gatherings but placing maximum numbers on attendees. Yet he pretty much did nothing to stop the mass “anti-police” protests that have been ongoing for weeks now, actually applauding those that were nonviolent. He simply encouraged marchers to wear face masks, doing nothing to insist that protesters stay at home and delay “the good fight” until the virus has abated.

So, lawyers do what lawyers do — or maybe, must. Christopher Ferrara, special counsel for the Thomas More Society, brought a federal lawsuit that is pending in upstate New York on behalf of priests and Orthodox Jewish practitioners, alleging violation of their civil rights through prejudicial orders and selective enforcement. Although the complaint doesn’t argue it precisely this way, isn’t the virus as likely — perhaps more likely — to attack the tightly packed, disorganized marchers than far more disciplined congregants attending a religious service? No rational person could disagree.

Look, though, how the protests erupted and their cause. Yes, politically, the governor, state Attorney General Letitia James and New York City Mayor Bill de Blasio, the co-defendants in the lawsuit, may be philosophically aligned with the Black Lives Matter (BLM) movement, and certainly wouldn’t want to appear to be trying to suppress peaceful protests or the movement. Truthfully, could they have suppressed the outpouring, had they tried to do so, without inducing potentially violent pushback, let alone an impossible bottleneck in the criminal justice system already suffering from the pandemic? And could they have acknowledged publicly that containing the protests would have been impossible for law enforcement, and so it was frankly better to engage in a sort of laissez faire regulation of a spontaneous, impulsive, mass protest movement?

In contrast, it wasn’t too hard for the governor to persuade most of the clergy to close their houses of worship in March — it wasn’t his executive orders that accomplished it. Rather, it was their own recognition of the health risks to their congregants, made clear by scientists and physicians researching and treating the virus. But make no mistake, BLM has been indisputably “organic” in nature, growing from a public outcry over a societal failure that came to the fore largely because of recording of horrible police conduct that went viral. 

In hindsight, it probably would have been better, more equitable, had Cuomo instead “urgently encouraged” religious institutions to close down at the height of the contagion, instead of essentially “ordering” it. The result likely would  have been the same — outright closure — for the vast majority of religious institutions concerned about their worshippers. But when the governor issued his original orders, he had no idea that an organic protest movement was destined to come along, or that a perceived inequity would lead to a potential constitutional dustup in a lawsuit.

And think about this: Calling on clergy, professors, community leaders or political figures to urge generally young, would-be protesters to simply ignore what they felt in their hearts until the virus passes would have been simply impossible. Not even Barack Obama, a charismatic figure to many young people, could have shut down the public outcry.  

But look beyond that. When one institutes a lawsuit on constitutional grounds against public officials, shouldn’t one want to look at the motives of the officials in having taken the actions alleged to be unconstitutional, even if the law might not compel that as a purely legal matter? Did Cuomo and de Blasio seek to repress religious observance for bad reasons, or at all?  Or were their motives designed to protect worshippers who would want to attend services and to protect those they might encounter afterward? Considering that in the real world — say in a TV interview about the issue, as opposed to the courtroom — wouldn’t you want to know the answer to that question from the plaintiffs themselves?  

Yes, in the fullness of time we will look back at all of this from the safe shore of a pandemic that hopefully will have abated. Thoughtful people may look back at what some call “inequity” in the treatment of worshippers and protesters. Paraphrasing Archibald MacLeish, though, “It is not in the world of ideas that life is lived. Life is lived in life.”  

Oftentimes — and I’m not speaking here as a lawyer — common sense and meaningful compromise, not lawsuits, are the best way to deal with emergent social problems when they urgently confront us.

Joel Cohen, a former prosecutor, is senior counsel at Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He is an adjunct professor at both Fordham and Cardozo Law Schools. He recently published “I Swear: The Meaning Of An Oath” (Vandeplas Publishing, 2019).