this is not a policy being written by a scalpel this is a policy being cut by the hatchet on october th the morning we had that hero hearing governor cuomo went on c n n to declare quote the cluster is predominantly orthodox  ultra orthodox cluster period close quote and i told her thirteen the governor publicly said we're now having issues in the orthodox community in new york where because of their religious practice a spread close quote and there are many other statements in the same timeframe and extending beyond that where the governor made absolutely clear that the purpose and the object of executive religion that's there it's fair to say three different things with regard to this your honor st that people of all faiths and all people of good space are concerned and outraged by the governor's statement by the governor's targeting nd it's fair to say that the executive orders as written cover certain geographic areas are red light cover certain new graphic areas and therefore all religious institutions within those areas that he had altered that he had ultra orthodox institutions in mind so i think we can separate out what the object of the governor's executive order was and separate that from the fact that as written it certainly offends people of all fa and it certainly captures institutions of all faiths and under under masterpiece cake shop the statements are improper and they certainly trigger strict scrutiny eloquently and so accurately however we are beginning our argument the plaintiffs the appellant in this case have additional arguments above and beyond the comparable your argument and those arguments are that they've been targeted it's as justice kennedy mentions in his masterpiece kicks up opinion is that with respect to legislative intent there's a question about when looking at a legislative act meant one looks at the comments of particular legislators during the debate to brin put on by the state that he was not aware of it was done by the governor's office not the department of health so governor cuomo is the sole adjudicator he decides what the executive order should say he decides who s communities which institutions should be subject to it since restrictions and he decides in forstmann it is it is a case like masterpiece kicks up on steroids i would submit in that regard  statements day after day after day targeting a specific minority group ultra orthodox community targeting without any evidence without any data without anything behind it to subject them to these restrictions and in fact the restrictions have a devastating effect of curtailing making impossible their religious practices there are as there are large churches in the neighborhoods of brooklyn and  also don't object to the twenty five percent limitation that's that's correct you want to underfund or face four which is what new york is in and what would be governing every other area in new york  state it's thirty three percent but but with something like a quibble a difference between thirty three percent which is what was getting to twenty five percent which is the ultimate in this but that is correct your honor and in fact the synagogues that are playing this year and there are affidavit in the record zip code but putting together communities that are really geographically and potentially otherwise miles apart at the same time while the governor does that too to gerrymander the existence of an orthodox  e has really a side wall other communities other counties other geographic areas have higher positivity rates and yet the restriction so as we restrictions you have room county at six point three percent steuben county at four sixty five percent among county at over eight percent and discretion to find the plaintiffs were not likely to succeed on their free exercise claim while this court should deny relief i'm not ground alone the district court's reasonable exercise of discretion is further demonstrated by point of failure to establish any of the other requirements for preliminary relief by focusing in their complaint on holidays that have now passed rather than any ongoing issues length of failed to establish a risk of a reparable harm independent of the constitutional violation they allege and the district court correctly found that the public interest and balance the back with these favored under the merits the district court did not abuse the discretion in finding that the executive order and would not motivated by religious  maps that literally have at individual edge rastas where the big cases are and if you if you i have those maps i'm happy to provide the court if you take a look at those maps you can see the red zone is tightly packed around where the these are positive tests rate is just one of several factors that considered before making something a read so it can be it's good because it's not lagging at the current indicator but there are problems with just looking at positive pass rate because for example if you have an outbreak test and lots of students at the college they might be overrepresented in the positive test rate compared to the other communities and that is exactly what happened in the order instead of saying how for shit it said orthodox jewish synagogues shall be subject to such and such capacity limits wouldn't that be subject to strict scrutiny yes because that would be subject to scrutiny scrutiny under fowler and its progeny which says under you know the st amendment the government cannot discriminate between religious fact that here we have an accommodation to houses of worship more generally all other comparable public gatherings lectures concerts except in red zones are banned the reason houses of worship are called out they can just be included with other mass gathering can be banned as well and to be treated the question is not whether they are called out this is an equal protection clause under the free exercise clause the question is whether they are targeted if they bring treatment compared to comparable secular and to certain and they are a neutral secular basis for the line the government has drawn and the evidence the mapping evidence i just discussed provides that neutral secular basis and is the other suit from the diocese here there are other things from law firms and car from generally applicable rules regarding distancing and mapping and whatnot you didn't single them out for special treatment you simply turn or you know negative treme just simply clarified they wouldn't re