but long as you stick to a minute we'll do it this morning and we're going to give you both two minutes start given the unusual format and then we'll jump in with question mr brody if you're ready to proceed i believe i believe we're reading may please the court new york is curbing covert sprigg the district court's preliminary injunction would disrupt those efforts a tell us therefore seek to stay the injunction pending appeal appellants will likely succeed on the merits the state's distinction between large social gathering and ordinary restaurant service is reviewed under the rational basis test which the supreme court has described as a paradigm of judicial restrict the district court misapplied the rational basis test by ruling that these particular weddings should be exempt from the state's fifty person gathering and due to ad hoc case specific factors that was legal error new york has a rational basis for distinguishing generally between large social gatherings and ordinary restaurant dining large social gatherings have a much higher risk of covert transmission that's on page thirty nine of our agenda compared with ordinary restaurant dining guess that weddings and similar gatherings interact and mingle more the events last hours longer there's often singing cheering congregate and the again and the guests arrive and leave together the convent pandemic has been tied to such super spreader event most recently as widely reported in the media a wedding in maine that violated that state's fifty person women on social gatherings has led to one hundred and thirty four co the cases and it was just one that the york also has a rational basis for adding a fifty person limit on top of masking and distancing  district court's analysis assumed that masking and distancing make the fifty person limit unnecessary but the crowd limits apply in addition to not instead of those measures it's rational for the  believe masking and distancing aren't sufficient alone and won't be followed uniformly dr zucker noted that the wedding party here has stated that they will you know just to make sure i understand the record  happen we also don't know how those masks will be worn you know there's a there's a certain rate of people who are wearing the mask under their nose dr zucker said that thirty three percent of people nationwide don't comply and the fact is that we're dealing with rational basis here so you're not talking about a battle of the experts or a battle of evidence where they can prove somehow that this case deserves an exception what we're dealing with is does the state have a rational basis to impose a general rule that you can pathic social gathering over fifty people and that's what the status if it's there has denied there's a high risk of irreparable harm the fifty person limit on large social gatherings is a public health measure intended to meet unprecedented threat commissioner zucker stated that a state is critically necessary while nobody can predict with certainty that a particular event will cause a zucker explained that this is the type of event that acts as a super spreader and again the fifty person limit applies on top of not instead of masking and distancing the c d c says that generally moment that's correct and that's why the balance of equity is ways against the plaintiffs they can still marry they can have a religious ceremony they can hold their reception in arrowhead estate simply trying to ensure that the wedding takes place in a safe manner consistent with generally applicable ways to prevent viral spread and they can have more than fifty guests if they use a video link or celebrate with other guests in a different place they can retire in their wedding as they have already important to note that there is no exception for demonstrations if you're thinking what you're doing is rather than when you want to know whether whether the demonstrations are causing any collectors what it was they're seven i am saying i don't know whether the demonstrations are causing any clusters but i'm sure the experts who are monitoring these clusters are tracking them back to the source but but the point is tiny demonstrations are are not allowed in excess of the fifty person when so you know people have flouted the law and that but that doesn't mean that you take away the general rule under under rational basis standard the question is is there any conceivable rational basis for putting a limit on a fifty on crowd and the answer is yes there is because c d c says more people equals more risk more people interacting higher risk of copd and new york has now you know from from having been one of the world's worst hot spots new york now leads the nation in fighting coves and that's because the state has exercised its police powers among other things to limit large social gatherings and to stay with allow new york to continue exercising those powers while this appeal is pending to complete the orderly phased reopening there's now a process and i want to i want to stress orderly phase reopening issuing the parchman health is issuing separate goings for separate industries one by one as we get it and the states perfectly allowed to do that under williamson without violating equal protection rational for the state to say ok we're not going to have large social gatherings like that and keep in mind the fifty person limit is being adjusted at st it went to zero and then it went to ten and then it went to twenty five and now fifty and the record shows the governor's office in the department of health are monitoring the incidence of coded and certainly there's every intent to lift the fifty person limit at some point but we're not there yet and that's what the the governor's public health advisory are telling him and under the rational basis standard certainly rational to say well because there is this risk of resurgence of cuba which you're seeing in florida in california in georgia in texas because there is this risk we need to keep that limit in place at fifty at this moment now plaintiff may have an expert that feels differently but the rooms and they had some speaker system that kind of thing that be satisfactory well i think that would be up to the department of health because it gets very  person limit where you say ok we're going to put a partition in this room and people can can walk in and out of the partition and mingle with each other but there's still a partition there so technically it's two rooms now i will say this the arrowhead venue has two separate buildings which which are which are physically separated from each other and you could certainly have fifty people in each building again you know i'm not a health expert from the part of health but i'm sure their partners help could tell arrowhead whether it would be acceptable to put a partition in or to use separate rooms but but that's not what the plaintiffs are asking for they're saying we want a one hundred and seventy five people yeah public not harm to themselves but this argument conflates the irreparable harm factor which is the nd factor in the analysis with the public interest factor which is the th factor in you know since the th factor is not even reached if the state dependent and not risk demonstrated reparable harm to themselves none of the state dependents will suffer any harm much less a reparable harm if the single wedding dinner is allowed to go forward even if the state can claim the potential of harm to the general public as to monitor this wedding that are close to ensure that the venue in the gas than here to all of the over one thousand dollars protocols and the costs of doing so do not constitute irreparable harm to the state moreover even in the highly unlikely event of a keeping up a limit to fifty people for social gatherings the issue is whether when the state has already granted ten thousand dollars exceptions to that to every restaurant bar the western new york in new york state to serve more than up to fifty percent occupancy whether it is at all rational to discriminate against folks who want to go to a wedding and sit down in the same restaurant in the same seats and usurp the same meal as they would it was it takes me that it's problematic to frame it simply in terms of this particular wedding may not how likely is it to be spread or event because by that it seems he wouldn't you could undercut any reasonable and rational public northern district repeatedly asked the attorney general's office to explain to him the wedding couple here and the venue have submitted declarations to the court many of them indicating that they will abide by all of the restaurant protocols that are in place so they will wear masks to their table they will get mean at their table the dance floors were pulled up and they will not do dancing they will not mingle at the bars they will not go table to table big just want to hold a dinner in new york state has already said that this venue which c thirty eight pre code can see two hundred and nineteen people at a time for dinner without a risk to the public help yet when these wedding couple the bride and groom want to hold a wedding three hundred and seventy five abide by all of the restaurant protocols that can be enforced by and and holding of a social gathering in that same of that same place i mean social gatherings are put up the people that know each other can mingle with each other and it does it seems rational to me the state's position that they'll be more closed interaction even in in for a longer periods of time even observing social distancing maybe everyone's wearing a mask but in rather than a restaurant dining a different tables wouldn't even be talking to each other well judge the the state trust restaurant goer stronger their masks and not to mentally go table to table when it allows them to dine when we're talking about a constitutional law equal protection of the laws the state most in gage and a practice that is the least intrusive what they've done he well all wedding doors cannot be trusted to do what restaurant goers do which is where their masks and abide by social distancing protocol so we're going to ban what the supreme court has said is no if you have alternative methodology is available to you to ensure compliance such as in force which the state is very good at doing you cannot just ban a class of people and conclude that they are presumptively going to violate the law and that's exactly what the what judge said a beast seized upon when he said you're essentially saying to this court that when these wedding  venue say that they will abide by all the restaurant protocols you trust them to do that if they're going to a dinner with two hundred and ninety people but you say that they're law breakers and you can't trust them when they're going to hold a wedding dinner with one hundred and seventy five people he says that's not rational basis the rational a reasonable basis it's not in fact finding venture what they articulate a reason to distinguish between the two groups and here at the social group in the restaurant dining this particular social group happens to want to have beer so they're gathering in a restaurant but the question is whether there's a reason to distinguish between a wedding party and restaurant dining and incentives if not a fact finding act exercise they just have to  not put that before the court the judge begged them to give him any rational basis for the distinction that they've drawn between two hundred people two hundred and one thousand people dining you know and turning over those tables over the course of giving maybe several one hundred people and a single wedding that puts the venue for the entire evening and they did not do so so the rational basis test doesn't allow them to come up with some pretext to a distinction it's not rounded in and in any proof or any evidence before the court and simply declare that to be the case there are several eating while they're dining and then they put on the mask and they leave the dining table that's the way people work at restaurants they would take where the master of the table where the mask away from the table now in a wedding situation it seems to me and this is  charge to judge livingston may have been driving or when people remembering can you expect him to get up from the table put on their mask over and talk to somebody and then take off their mask when they come back to the table  people are moving around all the time to be taking a mask off putting it on and so forth and it might be a time course when when that does not occur they don't they don't they're not wearing a mask and also the other problem is that the wedding is for hours this it's not like people just coming into a restaurant wearing masks going to their to their sign chaebol and then putting on a mask when they leave and leaving these people are going to be together they're going to go and   comparative class here are two restaurant dining being the point of this case and the venue all indicate that they would abide by every single one of the restaurant dining protocol so we're talking about a venue that there are three day week month tuesday wednesday thursday friday in seat two hundred and nineteen people safely according to new york you know trust them to where they're matched to abide by all of the things that you just indicated they would do and they can turn over those tables several times a night so they might serve or five hundred dollars people over the course of an evening and the comparative that's the comparative class now in the same venue these people want to hold a wedding dinner they want to book the venue for the entire night they want to have a similar dinner served by at the same table socially discomfort the same with patients or by the same waitstaff they simply want to have a wedding dinner will there be a head table with the bride and groom yes but otherwise they're seated for dinner they're not mingling they're not getting up they're not dancing and the state has every available option to enforce that just as they enforce it with bars and restaurants across the state so this this when the state says well we have soon that you are going to break the law and do other things the supreme court has said you cannot do that when you're talking about depriving people of equal protection of the laws if you have an argument there how long it's going to weddings and the last last all evening as much weddings do you know i don't know if i know the answer to how i'm going to assume and you know for the sake of the question that it would be several hours but you know compare that to a restaurant that can see people at fifty seven and nine o'clock you  the wedding was supposed to take place on august nd and obviously didn't do you have do your clients have a plan as to when they're now intending to get married will you have stress i spoke to them yesterday in anticipation of a custom like that and they told me that they are essential in waiting for the speaker to rule on the injunction to see whether they will be allowed to reschedule their wedding as you might imagine the arrowhead venue just like wedding venue all across the state are wedding because the injunction would prevent the state from enforcing the fifty person gathering that would not prevent the state from enforcing it i'm sure it would all of the social distancing protocols and all the other covert manner in roles after a while to rest constitutional rights they do have irreparable harm that they demonstrated there's a presumption of irreparable harm and castration and rights are invoked so i don't think the standard or the stay which is a very heavy burden for the state to do in this matter just involves saying well it's not it's not a great inconvenience to them to have their constitutional rights violated so i think they should be allowed if the stay is not edited i don't think it should be because i think the state has failed utterly to demonstrate a likely going to success on the merits and it's made no effort to demonstrate a reputable harm if the court look were to look at the submission by the state there is absolutely no effort made to satisfy probably the most significant prong in the state analysis which is a reputable harm the state simply says well  complicated case in terms of the law and the facts it seems to me an expedited appeal with which you could you could possibly this could be decided within a month or more five weeks  proper weight to the fifty person limit they say they'll abide by all protocols but the crowd limit is one of the protocol it's not expensive with respect to the soccer declaration soccer is before this court all the state has to do is show what a conceivable rational basis and we've done with respect to enforcement we don't have resources to enforce against every social event and we need these rules in place with plain say that they're waiting for the court to ruling injunction before they reschedule their wedding that essentially negates irreparable harm they admitted they can have a wedding at any time and finally with respect to predicting that this le cluster no one can predict with certainty that a particular event will cause the code to cluster but dr zucker explains that this is the type of event that acts as a super spr basketball court yes your honor it applies across the board and there are not ten thousand exceptions as counsel indicates so it applies to banquets it applies to weddings applies to all you know large social events but you know a person with no symptoms can spread coded one new york over one percent positive rate tests from erie county where this venue is located are coming back three percent positive at a wedding with one hundred and seventy five people that means five of them will have clothes without knowing it will interact with the other guests who are going to take the virus home and spread it in their communities that's how a pandemic expands that's what the state is trying to prevent