The legal and ethical question of mandatory masking has become one of the great controversies of our day. This is the remarkable story of how a nineteenth century New York law making public masking illegal led to the arrest of Jews celebrating Purim for wearing Purim masks en route to a Purim Ball in 1868.
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A February 10, 1895, New York Times retrospective describes how Purim was celebrated in the city before the Civil War – which turns out to be not all that different from how we celebrate it today – and, in particular, reports on the origins of the Purim Association of the City of New York (1862-1902):
Prior to the founding of this society, it was a general custom in Hebrew circles in the city to keep open house on Purim Day, and the young people made merry by disguising themselves in all sorts of comical costumes and visiting their friends so attired.
The Purim festival … is looked upon as a sort of carnival day, and even at the present many east side Jews commemorate it by donning all sorts of outlandish masks and dresses. It was this custom that gave the impetus to this little coterie of ten to make this holiday the time for a grand masquerade ball, and from the very start, these affairs became a social event of the season …
This unusual Purim story begins with real estate lawyer, judge, and philanthropist Myer Samuel Isaacs (1841-1904), a Jew deeply committed to both Jewish communal work and to the municipal affairs of New York City. He founded the Hebrew Free School Association, the United Hebrew Charities, the Montefiore Home, and the Hebrew Technical Institute; served as the first president of the Baron de Hirsch Fund and as a member of the Central Committee of the Alliance Israélite Universelle; and advocated for the rights of Jews in Eretz Yisrael, Europe, Turkey, and Morocco. He also established Seward Park on the Lower East Side of New York and was a personal friend of Teddy Roosevelt.
However, it was as publisher and co-editor of The Jewish Messenger that he ran an editorial in the paper’s January 13, 1860, edition urging that “Purim should be selected as the occasion of a good fancy dress ball, the proceeds to be donated to charity.” This idea, based upon the traditional Purim ritual of matanot la’evyonim (giving gifts to the poor), stimulated the founding of the Purim Association, which Myer served as its first president. The purpose of the Purim Association may perhaps best be summarized by the March 15, 1883, Purim Gazette issued years later by the Association:
Annually the Purim Association invokes the aid of the citizens of New York on behalf of some well-deserving charity, and the financial success of the Purim balls furnishes the best proof that the appeals are not in vain. The ever-ready response of the people testified to the deep interest of the community in maintaining all institutions which alleviate suffering and improve the condition of the needy and deserving poor.
On March 17, 1862, in the midst of the raging Civil War, a group of nine or ten (reports vary) wealthy Jewish young men conducted the first Purim Ball, which was held at Irving Hall on Shushan Purim. Over 1,300 tickets at $5.00 each were sold, with the proceeds split between the Jews’ Hospital and the Hebrew Benevolent Society. As the celebrants were about to attend the midnight Purim banquet, news came that Union troops had captured New Orleans and that Jefferson Davis had been killed, and the crowd responded with great cheers and the playing of martial music. [Although the Union did take New Orleans, reports of Davis’s death were premature, and the Confederate president actually died in 1889 in, of all places, New Orleans.]
Soon after the first ball, which set the standard for those that followed, the group decided to form an organization that would provide social entertainments for charitable purposes. Though the Association was founded by Jews, people of all faiths were invited by its members to attend the balls.
The second ball held at the Academy of Music in 1863 clearly manifested the Association’s aspiration to adapt Judaism to American values, as it featured red, white and blue streamers, patriotic music, and a gas-lit sign flashing “Merry Purim.” Successive balls were extravagantly decorated and the costumes, though originally mostly of Purim and other Jewish characters, soon spanned the spectrum of American culture. In a March 23, 1864, review of the third Purim ball, titled “Purim: Grand Fancy Dress Ball Brilliancy at the Academy of Music; Our Jewish Citizens in their Glory,” the New York Times reported:
… The hall was crowded with a most brilliant assemblage, who entered into the enjoyments of the occasion with a zest seldom equaled; the costumes were very rich and beautiful; the diamonds worn by the ladies magnificent, and in brilliancy almost rivaled the bright eyes of their owners. Among the best of the characters represented were those of Mrs. Partington, Lucretia Borgia, Penobscot Squaw, Chippewa Chief, Joan of Arc, several beauties of the Court of Charles H., the Duke of Buckingham, Faust, a Priest, and several Jewish maidens. Merriment reigned supreme within the hall …
Successive balls were held in notable venues, including the Metropolitan Opera House, Madison Square Garden, Carnegie Music Hall, and the Pikes Opera House, which the Association inaugurated at its March 9, 1868, ball (Purim that year fell on Shabbat, March 7). The annual Purim balls proved to be a smashing success and, as news spread about this exceptional opportunity to enjoy a masquerade, each ball increased in attendance and ticket price and became a social recreational highlight for both Jews and non-Jews.
The March 28, 1868 Spectator had this to say about the Purim Ball that year:
What a strange juxtaposition of ideas! – the festival of Purim celebrated by a masked ball, Vashti suggested by the beauty of an American merchant’s daughter, Esther dressed as a Parisienne under Louis Quatorze, Mordechai in “pants” and a collar … it is 2,378 years that ceremonial has survived, it is 500 years older than Christianity, and in the newest capital on earth (i.e., New York City) amidst the newest of the conquering nations, it ends in a masquerade.
However, the 1868 Purim Ball became known for a different reason. Under the headline “Arrest of Masqueraders,” a news article told the intriguing tale of New York Jews being arrested and incarcerated for celebrating Purim:
Yesterday being the Jewish Purim Festival, with a view of preventing any disturbances in the streets, Superintendent Kennedy issued a general order to “arrest all maskers in the streets.” As very often happens, the order was very literally construed in some precincts and the result was that a large number of all sorts of strange costumes gave the cells of several Station-houses a picturesque appearance at an early hour last evening. It is the custom among those of the Hebrew faith to make visits on the Purim nights in fancy dress, and in observing this custom last evening they found themselves pounced upon by the Police and dragged from their carriages into a Station-house.
The matter created so great an alarm that an appeal was made to Inspector Walling at Police Headquarters by the friends of some of the incarcerated, and the Inspector at once sent out an order notifying the Captain that the order of the morning applied only to such persons as should be found walking the streets wearing masks and that they had no authority to interfere with any person riding, no matter in what kind of vehicles. This explanation released all of the imprisoned except several in the South Precinct House who were arrested walking in the streets in fancy dress and wearing masks. Those will be arrested this morning at the Essex Market Police Court.
The most of the arrests were made in the Ninth and Fourteenth Precincts and naturally created much indignation among the captured ones and their friends. During the entire evening, parties made their appearance at Police Headquarters, making energetic protests against the treatment their friends had received while engaged, as they said, in the observance of an annual custom of their faith, never before interfered with by the Police, and never having been productive of any disturbance whatsoever.
John Alexander Kennedy (1803-1873) was Superintendent of the New York City Police at the time, and George Washington Walling (1823-1891) was known for keeping order in New York City during the Civil War period and for cleaning out corruption on the police force. (Teddy Roosevelt later held that position 1895-1897.)
New York State’s “Anti-Mask Law,” § 240.35(4) of the New York Penal Law, was enacted in 1845 during the state’s Anti-Rent era (1839-1865), when wheat prices fell, the soil became less productive, and many tenants were unable to pay their rent. Organizing against a de facto feudal system under which they were essentially indentured for life to a few plutocratic landowners, the tenant farmers formed bands of “Calico Indians” (their symbol of the Boston Tea Party); disguised themselves in calico gowns and leather masks; used force to thwart the landlords’ efforts to serve farmers with process or to conduct distress sales; and used intimidation, including tarring and feathering. They were also responsible for several deaths.
The issue came to a head in 1839 when Stephen Van Rensselaer IV, the owner of a 375,000-acre estate in Albany County, demanded payment of back rent and sought to evict the farmers. When law enforcement officers tried to serve the delinquent farmers with legal process, they were assaulted by heavily armed bands, who robbed them of their legal papers, tarred and feathered them, and killed three people, including Under-sheriff Osman Steele, who was shot and killed on Moses Earle’s farm on August 7, 1845. Steele was infamous for mocking the anti-renters and, when he rode up to Earle’s farm to enforce the auction of Earle’s livestock over his failure to pay $64 in back rent, he was met by a band of hundreds of tenants, shot in the gut; and died in agonizing pain a few hours later.
The rebellion had to be quelled, order had to be restored, and law enforcement officials had to have a weapon to use in identifying criminal masked marauders. Accordingly, New York Governor Silas Wright – who was, not coincidentally, a pro-landowner conservative Democrat – urged the legislature to pass an anti-mask law, and the bill quickly passed both house of the legislature and was signed into law on January 28, 1845.
Although the anti-renters became publicly unpopular in the immediate wake of the murder of Under-sheriff Steele, they ultimately triumphed. Their supporters united to form a powerful and effective political force in the state and in the budding Republican party; Governor Wright was defeated in his reelection bid a year later in 1846, laws were enacted that broke up New York’s feudal system, and the two protestors who were convicted and sentenced to death for Steele’s murder were pardoned. More than 150 years later, and in accordance with a long tradition of naming K9 dogs after fallen officers, a drug-sniffing German shepherd was named Osman “Ozzie” Steele in 2013.
During the Civil War, the law was amended to exempt “any peaceable assemblage for any masquerade or fancy dress ball or entertainment” to permit landowners to hold the masquerade balls that they so loved. Thus, at the time of the 1868 Purim Ball, the Anti-Mask Law provided that:
A person is guilty of loitering when he … Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities.
Violators of the law could receive a six-month jail term. According to Superintendent Kennedy, the “masquerade or fancy dress ball or entertainment” exception apparently did not apply to Jews dressing up for Purim. However, it is interesting to note that Inspector Walling’s understanding of the law seems to be correct; he released the Jewish arrestees who had been riding in vehicles (which are not “a public place”) but kept those who had “been found walking the streets wearing masks” locked up.
New York enacted the most recent version of its anti-mask law in 1965 as a loitering crime “against the public order,” which reduced the maximum punishment to 15 days in jail and was used primarily to halt Ku Klux Klan rallies. When the NYPD denied a rally permit to the Church of the American Knights of the Ku Klux Klan in September 1999 and threatened to invoke the Anti-Mask Law to arrest members who wore hoods at the demonstration, the group sued on First Amendment grounds and argued that the Law was unconstitutional.
Finally, in Church of the American Knights of the Ku Klux Klan v. Kerick, 356 F.3d 197 (2nd Cir. 2004), the United States Court of Appeals (one of the three judges on the appellate panel was future justice Sonia Sotomayor) upheld the constitutionality of the Anti-Mask Law. In ruling that the NYPD was justified in denying an outdoor rally permit to the organization, the court found that the law’s history demonstrated that the statute was “indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers” and that it “was not enacted to suppress any particular viewpoint.”
Civil libertarians and others complained that the government was selectively enforcing the 150-plus year old law, particularly in 2011, when New York police officers arrested Occupy Wall Street protesters wearing Guy Fawkes masks, and charged them under the Anti-Mask Law. The law was finally repealed in the wake of Governor Cuomo’s April 15, 2020, Executive Order 202.17, which mandated that all New Yorkers wear face masks in public to allegedly help stop the spread of Covid; the state legislature acted quickly and the law was repealed on May 28, 2020.
Now that mask-wearing is mandatory under law, an interesting question is whether Jews wearing masks on Purim this year that cover their entire faces satisfy the mandate. I would argue that it does – although I don’t think it’s a good idea to test this proposition by walking into a government building wearing a Purim mask! Wishing everyone a Chag Purim sameach, and may this be the last year that Covid is an issue in Purim celebrations.
