O pinion
Helfand Continued from Page 18
concluded that “the Governor
of New York made remark-
ably clear that this Order was
intended to target a different set
of religious institutions,” refer-
encing Cuomo’s CNN interview
where he stated “the cluster is
a predominantly ultra-Or-
thodox [Chasidic] community.

... the issue is with that ultra
Orthodox community.” By
contrast, Judge Matsumoto
concluded that Cuomo’s state-
ments were “taken selectively
out of context,” and did not
evidence any form of prohib-
ited discrimination against the
Jewish community.

Parsing out Cuomo’s
intent may be an impossible
task, although his continuing
call-outs of religious Jews
specifically certainly provides
fodder for trying. One can
certainly imagine, given the
public health stakes, granting
him the benefit of the doubt.

But maybe more curious than
his word choice is the relative
Lobell Continued from Page 19
stories online and with my
family, because the only way
non-Jews can slightly under-
stand what is going on is if we
tell our stories and show them
our lived reality.

It took me a while to get to
this place, though. I didn’t want
to comment on anti-Semitism
because I didn’t want to seem
like I was being dramatic. One
thing that anti-Semites say
online is that anti-Semitism
doesn’t actually exist, and Jews
make it up or are exaggerating it.

I gave into that for a little
bit, sadly because I didn’t want
to face harassment online. But
we must speak up.

This summer, I witnessed
#JewishPrivilege shift from an
anti-Semitic hashtag on Twitter to
one where Jews were sharing their
anti-Semitic trauma. I shared the
20 OCTOBER 22, 2020
opacity of the actual new
restrictions — an opacity runs
counter to the state’s commit-
ment to making decisions
based upon public health
metrics. Cuomo’s executive order is
quite clear that “red zones,”
“orange zones” and “yellow
zones” will be subject to
heightened restrictions,
including significant limita-
tions on houses of worship. But
the executive order is silent on
how the state identifies which
neighborhoods fall into these
color-coded categories.

Early last week, it sounded
like Cuomo planned to
impose the new restrictions
on zip codes with the highest
positivity rates. But as the week
progressed, Cuomo made it
clear that clusters would be
drawn “not by zip code, not by
census tract ... it’s only by the
numbers.” The problem is that the state
has not made clear exactly what
that means. What benchmark
metrics — that is, what numbers
— over what geographic area
constitutes a cluster subject to
the new regulations?
Consider, as a contrast,
California’s current regula-
tions. In California, counties are
placed in a color-coded tier based
upon an adjusted case rate and
positivity rate. The state is quite
clear what benchmarks a county
needs to hit before the state will
loosen COVID-19 health restric-
tions. New York, however, has
not provided analogous rules in
its official documents or state-
ments; they do not appear in
Cuomo’s executive order, nor
in the state’s briefing in federal
court. This failure certainly
makes it hard to determine
whether the state is applying the
same restrictions to other neigh-
borhoods that it is applying to
predominantly ultra-Orthodox
Jewish neighborhoods.

Failure to apply these
same restrictions to all neigh-
borhoods with comparable
positivity rates — to engage
in something akin to religious
gerrymandering — would raise
serious concerns as to whether
the state is singling out
particular Jewish communities
for discriminatory treatment.

The state’s lack of clear metrics
is not evidence that the state
has targeted Jewish commu-
nities. But if the state is going
to be successful in its attempt
to convince the impacted
Jewish communities that they
are getting a fair shake — that
decisions are being made based
on numbers and not politics —
then it has to do a better job
explaining what those numbers
are and how its “science-based”
decision-making works.

Ultimately, these new
restrictions do not exist in a
vacuum. They come on the
heels of a summer where de
Blasio unnecessarily politi-
cized COVID-19 restrictions.

As I’ve expressed previously, in
choosing to justify the dispa-
rate treatment of racial justice
protests and houses of worship
on political grounds — and
not on far more reasonable
public health grounds — De
Blasio cemented in the minds
of many faith communi-
ties that ongoing COVID-19
regulations were not just
about health and safety. Those
missteps have already served
as grounds for a federal court
to strike down some of New
York’s public health guidelines
— a consequence that puts all
New Yorkers at risk.

Undoing the damage of these
early missteps will require the
state to go above and beyond
when it formulates new restric-
tions, especially those that
disparately disadvantage
religious communities. There is
no room any more for ambiguity.

Ambiguity only feeds into a
festering narrative of distrust.

Indeed, if the state is unable to
convince faith communities that
its restrictions are intended to
protect them instead of punish
them, it is hard to see how it
will be successful in securing
compliance. l
landlord and Uber stories, and
also posted, “#JewishPrivilege is
when a Hollywood agent yelled
at my husband, a comedian,
for taking off Jewish holidays
because ‘You can’t do that in this
business!’” and “#JewishPrivilege
is having to hire an armed guard
for our synagogue because Jews
were massacred in Pittsburgh
and Poway.”
I received more engagement
than I’ve ever achieved on the
platform. One person told me
“F— Israel” and another called
me a “heathen” for converting.

But overall, I found massive
support from non-Jews and Jews
alike, with many retweeting me
and agreeing with what I had
said. It empowered me to keep
tweeting about anti-Semitism.

We must continue to speak
up, show our vulnerability
and humanity and help the
non-Jewish community under-
stand. Black Lives Matter is
very effective at showing people
outside of the Black community
their pain and trauma and has
gained a huge following, with
people of all different races and
backgrounds supporting them.

There’s no reason that
anti-Semitism and its effects
shouldn’t be understood and
rejected just as firmly as racism.

Unfortunately, a lot of
non-Jews think that anti-Sem-
itism is a thing of the past
that died with the Holocaust
and society has advanced since
then. I certainly did before I
converted. But when talking
about anti-Semitism in the
classroom, it has to go way
beyond the Holocaust so
people can very much realize
it’s alive and well today.

Recently, a teenager asked my
husband to take off his hat so he
could see if he had horns. Maybe
if that teen had gotten a better
education on anti-Semitism, he
would have thought twice before
saying that.

When I talk to my family
about how America is quickly
becoming like Europe before
the Holocaust and how I want
to move to Israel one day, they
say “Really?” and find it hard
to believe.

“Why would you move so
far away?” they ask. I tell them
I want to survive. I send them
news articles to back up my
claims. I hope they’re beginning
to understand. I hope they see
that Pittsburgh and Poway were
not isolated incidents but indic-
ative of a bigger issue going on.

It may seem dramatic, but
I’m OK with being dramatic
now. I’m not going to apolo-
gize for bringing up the trauma
I’ve experienced. That’s not
my job. I’m done with feeling
powerless. If our collective chorus gets
louder and louder, and we tell
our non-Jewish friends and
family about anti-Semitism,
they may just start to under-
stand — and become valuable
allies in the process. l
JEWISH EXPONENT
Michael A. Helfand is professor of
law and vice dean at Pepperdine
Caruso School of Law, visiting
professor at Yale Law School, and
fellow at the Shalom Hartman
Institute. Kylie Ora Lobell is a copywriter,
editor, marketer and publicist who
has written for New York magazine,
The Washington Post, The LA
Times, The Jewish Journal of Los
Angeles, Aish, Chabad and Tablet
magazine. Join the conversation!
Tell us what you’re thinking and interact with the community
at jewishexponent.com
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