Separation of theater and state: One performer is challenging NYC’s selective COVID restrictions

It takes courage and grit to stand up to authority when your basic rights to free expression and economic liberty are threatened—especially when you’re leading the charge on behalf of dozens of others.

Yet, in spite of the many obstacles that accompany taking on “the man,” one performer is fighting back against New York’s arbitrary and unequal COVID restrictions.

New York City theater veteran Catherine Russell knows a thing or two about grit.

In the 34 years she has been starring as Margaret Thorne Brent in the off-Broadway murder mystery Perfect Crime, she’s missed only four performances, earning her a Guinness World Record for the most performances as a character in a play (more than 12,000).

To put Catherine’s dedication to her craft into perspective, on the day of her own wedding, she and her late husband went to the local courthouse, said their vows, grabbed lunch, and took a nap, and then she headed back to the theater in time for the evening performance of her show.

Now, not only is the 65-year-old performing eight shows a week, but she also runs The Theater Center that Perfect Crime calls home.

Running a theater involves more than just performing. Before the curtain rises, Catherine’s been known to take your ticket, fix the boiler when it breaks, re-tar the roof, and attend to basic plumbing needs. This relentless commitment to her work has even earned her the nickname the “Cal Ripken of Broadway.”

Her passion for theater stems from her childhood. As a young girl, Catherine’s parents would take her into the city from Connecticut to catch a show, which is how she first fell under the theater’s spell. Those trips to the city helped set the stage for her future career as a performer.

But after years of both performing and running off-Broadway theaters, the pandemic forced her to add a new skill to her resume: taking on the City and State of New York and challenging Gov. Cuomo’s executive orders imposing unequal capacity restrictions on theaters.

NYC is the mecca of American theater. The bright lights of Broadway and off-Broadway shows never fail to dazzle visitors. But the spread of COVID-19 has dimmed those lights, forcing one of the city’s most lucrative industries off stage and into the dark.

Recognizing the seriousness of the situation, Catherine had no qualms over temporarily shutting down the theater. Without much information about the novel coronavirus, there were many unanswered questions about public safety.

As time went on and the public learned more about the virus and the best practices for mitigating its impacts, New York began to reopen in phases. But not all businesses were treated equally during the reopening, and Catherine grew increasingly concerned about the selectiveness of some of the rules.

One rule that gave her pause was the distinction made between theaters and churches.

Churches were permitted to reopen at 50% capacity. Theaters and comedy clubs, on the other hand, were only given permission to reopen at 33%. If there was a rational basis for this policy, there might be some room for understanding. But to demonstrate how absurd this regulation is, it is important to acknowledge that many theaters, like Catherine’s, rent out their space to churches on the weekends.

Even though the buildings follow the same protocols whether they are housing churchgoers or theater patrons, different capacity laws apply, depending on their use.

When a church service is held in Catherine’s theater on Sunday morning, for example, it is allowed to seat 17% more people than a performance of Perfect Crime that takes place just hours later.

It also struck Catherine as odd that a church service is allowed to open at a greater capacity, even though, because parishioners engage in singing and sometimes recitations, attendees are at a higher risk for contracting the virus than during a theater performance where all attendees are wearing masks and only the actors are speaking.

“It’s safer to be watching a show than to be singing in a church in the same venue. It’s identical. This is the point. Why is one content better than the other?”

Government should not be treating theaters differently than churches just because the people on the stage are performing instead of preaching.

None of this sat right with Catherine, who had taken extreme measures to ensure the safety of her patrons and employees.

In a statement, she described the safety precautions she has taken by adding “cutting-edge hospital grade air scrubbers providing bi polar ionization decontamination in its HVAC system which deactivate any germs in the air immediately, in addition to MERV13 filters, numerous hand sanitizing stations, and on site COVID compliance officers ensuring all safety protocols are in place and strictly followed.”

Audience members are also required to wear masks at all times, practice social distancing, and make use of contactless ticketing. Employees are required to get tested for the virus weekly. Not to mention, everyone working in the theater has received a vaccination by this point.

Catherine has also implemented contact tracing in case anyone contracts the virus at her theater.

And, as Catherine points out:

“There has not been a single documented report of COVID transmission in a theater. In a movie theater or an actual theater anywhere in the world. Not one.”

Yet, the state is still enforcing rules that give authorities the power to choose which businesses can stay financially afloat, and which are left hanging by a thread. Restaurants and bars with live music, jazz supper clubs, and nightclubs can all open at higher capacity than theaters.

Catherine hit her breaking point when she learned bowling alleys—where greasy bowling balls and shoes are shared among patrons—were allowed to reopen at higher capacity than theaters.

That is when she decided to take legal action.

“I have nothing against bowling. But to me, putting your fingers in those holes and wearing rented shoes, that’s fine, but don’t tell me that that’s safer than going to a theater. So that really did push me over the edge.”

Broadway productions have made the decision to remain closed for the time being, as they can afford to withstand the financial blow (and can’t afford to stage massive shows with minimal audiences). Smaller theaters don’t have the luxury to wait.

Catherine believes that every theater has the right to stay closed if they so choose—she’s not in this fight to insist that all theaters reopen.

But she also believes artists should be allowed to express themselves on stage, and that theaters should be legally allowed to reopen at the same capacity as other venues, like churches—especially when many of these buildings are used for both worship and entertainment. COVID-19 does not discriminate depending on who takes the stage.

Some in the industry did not agree with her stance.

“I think people are divided about it. I think when I first took on the case in October, a lot of people thought I was some evil witch who was going to kill people. I think that things have changed since then.”

Despite feeling alone at times, Catherine knows she is doing what is right, and that her economic future should not be dependent on arbitrary government rules.

“It really bothered me that the fate of the theater, my personal fate, the fate of the people who work here seemed so random. It made me really angry that off-Broadway was, once again, ignored. The government just doesn’t have the right to randomly decide when certain businesses can or cannot open. There was no rational reason why our theaters were not open. There was no scientific reason, nothing.”

But there is more to it than just economic stability. People have spent over a year in isolation, cut off from their communities. We are all in serious need of human connection. Attending a show gives people back the sense of community and connection they lost over the past 14 months.

“I think that we are, by nature, communal animals and it makes me sad that so many people are now working at home and staying at home and watching Netflix on their couches. There’s something really wonderful about sitting in a room with people and watching a story and laughing or crying or feeling that energy, and I think that’s really important.”

She continued:

“I think if you’re sitting in a room with people, you’re more connected and you feel them and sense them and smell them and hear them. I think theater provides that for people. The people who have come back already seem to be very, very happy that they’ve come. People who’ve come to see one show, now are coming to see the other one. People are happy when they leave.”

Taking on one of the most powerful cities in the country is not for the faint of heart. But Catherine is nothing if not courageous. She helped to organize a coalition of theaters and comedy clubs and to raise money to pay a private attorney to file the initial lawsuit. And because she knew the case needed First Amendment expertise, she then turned to Pacific Legal Foundation, which is taking on her case free of charge after initially filing an amicus brief in the lawsuit,

When asked where she found the courage to do this, she said:

“I was raised to be a gritty person. People would say, ‘You can’t do it’ and I’m like, ‘Screw you. Watch me.’ I don’t really like to take ‘no’ for an answer, so if that’s good or bad, I don’t know, but I’ve been determined my whole life and I work hard. So I’m willing to work really hard for it, so I was determined to get open and we did! I’m really proud of that.”

For Catherine, the most frustrating aspect of her case has been the waiting.

“Everything takes time. You know what I mean? You realize that. In law, everything takes time.”

But Catherine knows the time is well worth the effort if it will allow her to provide for her livelihood and give others—both performers and audience members—the gift of artistic expression.

“There’s something, once again, about being in a room with people telling a story. If you’re one of the ones telling the story and they’re listening to you, that’s a gift. I feel really grateful for that and I’m aware that I’m telling a story and I have to tell it emotionally and clearly.”