Avi Schick, a partner of the New York affiliate of Troutman Pepper, is also a former deputy attorney general for the State of New York. Schick is a well-versed attorney in both criminal and civil investigations, with a primary focus in First Amendment issues. Schick and his team took on this case pro bono to ensure religious freedoms. The Queens Jewish Link discussed religious advocacy and the future of the case.
QJL: How will the Supreme Court decision affect cases in the long run?
AS: The decision will have an impact felt across the country. It not only resets the thinking about how religious expression must be accommodated during the pandemic, but more generally its ruling will also make it easier to obtain protection for religious practices that are restricted by government rules and regulations. Just before Shavuos, the Supreme Court denied an injunction against enforcement of California restrictions on worship in a case known as South Bay. Somehow, that denial was interpreted by Governors and courts as requiring total deference to States even when their rules were more restrictive of religious activity than secular conduct. Last week’s decision changes that.
QJL: Why was the decision so different from the South Bay case from earlier in the pandemic?
AS: There were several factors. First, Governor Cuomo’s rules limiting attendance at houses of worship to 10 or 25 people depending on the zone designation were unusually restrictive. Second, South Bay was decided early in the pandemic, when States were coming off total lockdowns and just starting to sort out best practices. Six months later, there was less tolerance for the trust-me-we-know-what-we-are-doing argument advanced by the State. And, of course, there was the addition of Justice Barrett.
QJL: Will this decision be referred to, similar to Jacobson vs. Massachusetts, in the years ahead?
AS: The Jacobson decision itself was not cited all that often for a really long time. And then it made an appearance in Chief Justice Roberts’ short concurrence in South Bay, and before you knew it, more than 100 courts cited it. Frankly, I am hoping that our decision signals a shift toward greater protection of religion generally, in which case there will be many Supreme Court opinions to rely upon if government unduly restricts religion. That said, since our filing, there have already been four applications for injunctive relief filed with the Supreme Court by religious institutions.
QJL: Was the timing of the decision, before Thanksgiving, an expected measure?
AS: We certainly hoped it would come then. But once evening rolled around, we pretty much had given up hope of getting a decision on Wednesday. I certainly was not expecting an email from the United States Supreme Court at 11:47 p.m.
QJL: Your father, Marvin Schick a”h, was a pioneer in Orthodox advocacy in the legal and policy arenas, gaining acceptance on issues of his era such as workplace accommodations for those who observed Shabbos, wore a yarmulke and kept kosher. Your efforts follow in his footsteps. In retrospect, is this how you look at the Supreme Court decision?
AS: The only thing that tempered my excitement about the victory was my inability to share it with my father, who was niftar a week after Pesach. As you noted, he was at the forefront of the frum community’s efforts to not only gain protections to live as Orthodox Jews, but also to advocate for funding for yeshivos. He would have been pleased that the frum community stood up for its rights, and that it did so within the legal process. Perhaps getting the decision on the eve of Thanksgiving will serve as a reminder that advocating for religious rights is in the finest American tradition. I have no doubt that my father’s advocacy as a meilitz yosher was just as relentless and effective as his efforts during his lifetime.
QJL: You live in Flatbush, an area that was heavily affected by the red and orange zone restrictions. Did this case feel personal? What drove you to step up for the community?
AS: Personally, experiencing the impact of the Governor’s restrictions that we challenged is certainly not typical of the cases that I handle. But there were two factors here that motivated me most. First, it was the way religion generally was given so little respect. The notion that elected and unelected state officials sit in a room and decide how many people can go daven is not something that should go unchecked. Then, there was the way the Orthodox community was made out to be perpetrators rather than victims of the pandemic. No other community is described that way. There was no way to effectively push back on the tsunami of negative attention that was engulfing our community. So, we went right after the improper restrictions themselves. Governor Cuomo announced the new rules at a press conference late in the afternoon of October 6, and within two hours my colleagues and I were drafting a lawsuit.
QJL: If the restrictions are again put in place, can the government still manage to find a way to restrict religious freedoms?
AS: The decision will surely give Governor Cuomo – and governors across the country – pause. But the point is not that there cannot be rules during a pandemic but that religion cannot be targeted and it cannot be disfavored relative to secular conduct.
QJL: What highlights from the decision deem its historic value?
AS: There are two aspects of the decision worth focusing on. Throughout the pandemic, states across the country have published lists of activities that are deemed essential and therefore to one degree or another permitted, and those that are deemed non-essential, and therefore restricted. Religious expression is never deemed essential. Well, Justice Gorsuch put a stop to that last week. Religion is essential because the United States Constitution says that it is essential. The other is that states always try to justify their actions by saying they have a compelling interest in issuing their rule. What the court said last week is that is not enough. States that limit, restrict, or hamper religious activities will be held to a higher standard. They need to establish not only a compelling interest, but also that their rule is narrowly tailored and the least restrictive means of achieving their goals. That standard is much more difficult for government to satisfy.
QJL: What steps still lay ahead, as this was just an emergency injunction?
AS: We are back in the Second Circuit Court of Appeals later this month. But it is important not to lose sight of the fact that the Supreme Court’s injunction stays in place through any decision of the Second Circuit. So, if there were an adverse ruling in the Second Circuit, we would be right back at the Supreme Court, with the injunction in place, until they take action.