Closed: The parties reached a favorable settlement and dismissed the case.

Dubbed the “Cal Ripken of Broadway,” New York City actress and theater manager Catherine Russell began her starring role in Perfect Crime in 1987. Over that time, she missed only four days—to attend family weddings. She scheduled her own wedding for a morning so she could perform that night.

Catherine’s streak of eight performances a week, a stunning accomplishment that still stands in the Guinness Book of World Records, ended in March 2020 when the pandemic was declared. Almost immediately, Gov. Andrew Cuomo and Mayor Bill de Blasio issued an order indefinitely shutting down a large swath of businesses throughout the state, including theaters, restaurants, casinos, gyms, and movie theaters.

Catherine initially had no problem shuttering The Theater Center to help fight the pandemic. The Theater Center is located in Times Square, and she manages its two theaters; the Anne L. Bernstein Theater, which is home to Perfect Crime, and the Jerry Orbach Theater, which is currently home to The Office! A Musical Parody.

Catherine and her fellow theater owners used their down-time to implement extensive safety precautions against the spread of COVID-19, such as upgrading air filtration systems, developing plans to stagger the arrival of crowds, and ensuring social distancing. They also arranged for their performers to wear clear masks and undergo frequent, regular COVID testing.

By June 2020, the government allowed most businesses to reopen with varying capacity restrictions. While catering halls, gyms, bowling centers, and shopping malls could operate once again, small, live-performance theaters like Catherine’s could not. When restaurants reopened, they could even host live music and performances.

Live-performance theaters were not the only category that was treated unfairly. Churches were also subjected to harsh closure orders that drastically limited attendance. But this changed after the Supreme Court ruled that the governor’s shutdown orders cannot treat religious organizations differently than secular businesses.

Still, theaters were not allowed to reopen. Finally, the governor issued an order that allowed theaters to reopen starting in April 2021. His revised order allowed theaters to open at 33% capacity, with an indoor maximum of 150 people.

At the same time, however, another order allowed indoor food services and dining capacities to jump to 50% with no numerical cap—the same levels permitted for churches. Large, catered events such as weddings were allowed to feature live dancing and musical performance.

Catherine’s own theater space is often rented to churches. So, on any given Sunday, her theater could accommodate a church service at 50% capacity, with no limit on the number of churchgoers, while a play performed just hours later—in the same theater—limited attendance to 33% and no more than 100 people.

“If I’m next to you singing a hymn or even six feet apart, that’s different than if we’re both sitting there watching The Office with our masks on. It’s safer to be watching a show than to be singing in a church in the same venue. It’s identical,” said Catherine. “This is the point. Why is one content better than the other?”

Pandemic or not, government cannot treat theaters differently just because of what the people on the stage are saying. That is, it shouldn’t matter whether people are listening to a live band perform while having a cocktail or eating dinner, listening to a sermon, or sitting in a theater enjoying a play, comedy performance, or musical.

Off-Broadway theaters are small by definition, and one-third capacity simply isn’t enough to keep them open. Moreover, the state’s unequal treatment has created negative stigma for live theater that made it more difficult for these businesses to rebound. Catherine wasn’t content to sit by and watch arts and livelihoods continue to suffer under the state’s and the city’s ongoing unequal treatment.

Though Perfect Crime finally retook the stage in April 2021, New York City continues to assert that it can impose such unequal executive orders in a future emergency. Represented by PLF, a group of small-venue live-performance theaters (with fewer than 200 seats each) challenged the government’s authority to issue unequal executive orders, so the pandemic-era government overreach can never happen again.

What’s At Stake?

  • Our right to free speech, including artistic performances, deserves the highest level of constitutional protection, even during a pandemic.
  • The government cannot treat similar businesses differently without good reason. Theaters should not be subject to more onerous restriction than churches and restaurants, absent any public health justification.

Case Timeline

September 21, 2021