twenty five percent capacity restrictions and the thirty three percent limitations in arms on the little framework of the supreme court's decision provides the analysis of those restrictions and compels the conclusion that they violate the free exercise clause this is so for t independent reasons st order impermissibly targeted the orthodox jewish community that is evidence by defendants numerous statements singling out that community and its institution just the day before issuing the order defending threaten to close required to twenty five percent essential gatherings are permitted with no restrictions at all this disparate treatment of religious kinds of exists as well with attendance limited to thirty three percent of capacity while offices and others in the central can have fifty percent that because it's calculated based on usable space not square footage because as i understand it argument essentially amounts to the proposition that occupancy caps that might appear just give the choice on their face because they're including descendant were asked if they want to put on witnesses defense declined defendant did however put in a very comprehensive affidavit from the health department explaining the executive order that affidavit was signed by the health commissioner it contains ninety nine separate paragraphs and sturdy two different exhibits and none of those paragraphs none of those exhibits none of the briefs before the opposition before this court did the state ever even suggest that its limitations had anything to do with that with limits in the building code it was raised the st time on the city not in any other briefing the district court not in any other briefing before this court on injunction pending appeal not before the supreme court as i said not in the health commission is ninety nine paragraph thirty two exhibit declaration explaining precisely the reasoning and justification for it so that there's no evidence in the record to support it and there's nothing to suggest it had anything to do with the limitations on appeal order to that effect and then judge lawyer asked me what i would be ok with but in any event there's no reason to suggest there's no argument that that discussion on a injunction pending appeal somehow limits our rights to ok can i also ask you a question about your allegations about zoning if we agreed with you on that point wouldn't the relief that you're seeking be the same in other words the injunction the cast whether it's  there's new evidence in the records that the percentage of the titians includes a substantial burden on your clients exercise of religion is that right there's nothing in the record that shows that that's not right so i think we said when when when if i can just conclude the defendant seeks to avoid this court's decision by suggesting that we mentor the district court but the supreme court's order in this case explicitly contemplates that this court will decide this expedited appeal the governor's determine that fifty percent capacity is appropriate anything that we're actually here actually fighting over in terms of the application of the executive order thank you for asking that stretch because of course it is not right in the supreme court of it's still qualified as an arm so it wasn't it was john literally on the same tag that the application for our rigs in the supreme court was fully submitted and about to be decided by the supreme court which it gives days later would challenge to the percentage limits the denial of its targeting claim should be affirmed because the district court did not clearly err in finding that the purpose of the order is to limit mass gatherings and cope with hot spots not to target orthodox ask this favor treatment claim should be vacated in remanded so that the district court proceeding in an expeditious manner can address in the st instance the effect of the supreme court's decision on the percentage limits standing alone as to i would ask targeting claim the governor's comments do not target orthodox judaism as a district court found those comments were taken selectively out of context and properly understood they reflect the goal of limiting mass gatherings in copenhagen spots because of their high virus transmission potential the order has not been applied to target orthodox judaism either there is no evidence that any geographic area with similar positivity rate and population density but without a substantial orthodox jewish population has been subject to less restrictive zone designations than the brooklyn and queens areas at is favored treatment claims regarding the percentage limits this court routinely vacates and remands for intervening supreme court decisions as we explained in our recent recent twenty eight j letter and  and essentially took the fixed number limits off the table in the middle of this p i appeal no party had submitted or had any reason to submit evidence and argument squarely  right to say that the supreme court focused on the very wide delta between small fixed number limits on houses a th th and supposedly unlimited essential businesses and certain non essential businesses but on on the one hand the percent limits are less restrictive than fixed number limits and scale with the size of the building and on the other hand as i go das concedes on page three of its reply brief the supreme court fail to appreciate that essential businesses have limits to in fact the essential businesses that the supreme court focused on retail businesses office based businesses and manufacturing businesses all have a fifty percent limit and because of the way the maximum occupancy is calculated this is one of the issues we would love to explore in the district court because of the way maximum you can see is calculated in total number of people terms houses of worship may in fact be treated more favorably than the essential business just it higher in terms of numbers but as i was just discussing with your honor it may not be higher and i think you can see the occupancy limitations might make it differs the way occupancy is calculated so  this is a real point of the everybody is subject to social distancing requirements and so regardless of how the occupancy limitations are calculated everybody needs to be spaced out in the system the same way and so the state can say that only allowing a certain number of people is a difference because all of the species will be the same and why is that correct that's just incorrect algebraically especially for the larger buildings at issue here like the synagogue for larger buildings that may well be the case that that at the the percent of the prescribed percent maximum occupancy can fit comfortably within the building and accommodate the six foot or twelve foot in certain cases social distancing protocols such that those social distancing protocols would not operate to displace further people out of the structure and equalize the limits across  different structures and that sort of structure by structure comparison the mathematical fact in certain cases of the protocols is exactly one of the issues that would be right for exploration in the district court namely how man was not a rat this is part of this wasn't a rationale that was given in real time right there's nothing in the record that reflects that this was part of how the numbers were arrived at and so you can't really  narrow telling through a post hoc explanation can you know we can't show it through a post hoc explanation we want to throw we want to show it through a just a regular old explanation we want to go back to the district court and make the showing because no one had ever fo your honor because as i was discussing this step and with your honor's earlier the fix we concede as to the fixed number limit those are the preliminary injunction purposes effectively off the table so what we are talking about now is the percentage  standing alone we have arguments and evidence that we have things to say about whether what level of scrutiny applies in terms of whether those percent limits actually are purchased or not and if indeed  limitations might very well amounts disparate treatment because they're lower but the percentage limitations might not be even though there are different percentages that are applied and therefore it's a totally different question that's your position it may be a it appears to  sign occupancy limitations by the religious status of the gathering or the building and yet the executive order does so isn't it a problem for your argument that the provisions of a of this argument about the real impact of the percentage limits it's one of the many things that would benefit from further evidence and argument now that the parties are for the st time in this litigation issue wasn't really join well with respect to the percentage limits we don't know we think there's a point we try to preview in our brief some of the evidence as to why in real number a person terms religious institut and are treated with more favorably under the percentage limits but i agree that there are wrinkles to this argument that would need to be smoothed out we are not saying that we win here today on this argument we are saying let us go to the district i see what you're getting at your honor i think even if one were to say that looking at the building code even in a prima facia way you don't find it persuasive still we need the opportunity to submit evidence an argument concerning whether the percentage limits to satisfy strict scrutiny people were largely focused on what level of scrutiny applies but and again this could also be the subject of the mony regarding supreme court in its opinion suggested they might be gatherings in general all of those statements as a district court found in the findings not clearly erroneous were taken out of context for example in the  full transcript of that press conference that he either would close down or has closed down many venues conducive to mass gatherings namely colleges pay through twelve schools and twenty zip codes parades and bars and us with the rollout of the executive executive order where the governor makes clear it's about mass gatherings and he cites many examples some secular some non secular about mass gatherings that make clear that his no he's not saying he has an issue with a particular religious community at least as i understand your question he's saying he has an issue with corona virus clusters and mass gatherings happening in hot spot areas and it so happens at the actual ma some of these hot spots areas have been linked to mass gatherings of an orthodox jewish it sir this is just part of i just asked one clarification question on your brief says that the see that they are we certain for for preliminary injunction purposes yes i think we would have to concede that they're still a part of the underlying permanent injunction proceeding in this case and i think we would want to reserve our ability to prove to really firm up our among other things or epidemiological record as to what's comparable and what's not and show that there was no disfavor treatment in the st place but we do not object to a strict scrutiny treatment erred conceptually in focusing on only those secular activities that present a comparable copious risk or whether we erred factually in just not providing a robust enough record as to what counts as comparable and that record that we provided to the supreme court is essentially the same record that's before your honor's now on this p i appeal but we would go back to the well and try to firm up that record such that we might be able to show among other things that even as to the fixed number limits when you make an apples to apples comparison in terms of activities and businesses with comparable coated epidemiological risk that there is no disfavor treatment in the st place and therefore that rational basis review would apply but i just want to circle back that for the purposes of this appeal we are certainly i mean what we're workin seating an injunction and we we realize that that that the record on this appeal is not persuasive enough to is that correct there are not similar capacity restrictions on in schools there are very rigorous and much more rigorous coded testing requirements a certain percentage of the school has to be tested sort of on a rolling basis and if that if that positivity rate ever exceeds a certain threshold and i believe it's different in different localities based upon population density then the whole school has to close down and there's no similar testing regime imposed by the guidance the department of health guidance on religious services and schools and schools includes universities there is separate guidance on higher education i believe there's some overlap with respect to the with respect to the protocols but i i can't pinpoint at the moment exactly your honour's we are in a coded resurgence and governor cuomo is trying his level best to protect all new yorkers including plaintiffs and their warship ors from the dangers of mass gatherings and cope with hotspots that is the purpose behind the executive order we accept a preliminary injunction on the ten and twenty five person limits but we asked the court to let us return expeditiously to the district court to demonstrate that a preliminary injunction is not warranted on the  as as has been discussed the general social distancing and masking requirements that would be imposed and complied with and so if those would for the reason impose a further limitation that's what governs but the default is fifty percent it doesn't go to zero if there is no universe in which an injunction here is that there are no restrictions on houses of worship or all the thousands that goes back to default which puts houses of worship religious conduct exactly on equal footing with offices in the complaint demonstrates the governor actually held up a picture of an orthodox jewish event to demonstration on just that he was trying to restrict in fact he was holding up a picture of a two thousand and six the event  so it was certainly inappropriate for multiple reasons but it can be no hewn a verse in which he can explain the statement that quote this is a predominantly an ultra orthodox cluster the governor made that statement on october  tuitions make up a new school portion of with us a covert transmission is but at the time they were and this is the problem what happens if your target a religious minority there's something that's going on in the world there's th not comparing a house of worship to a particular essential business or whether house of worship was treated you know better than some businesses and worse than others it was it was the concept conveyed in that majority opinion that the governor's restrictions on how certain wish of the restrictions aren't neutral there are special restrictions on houses of worship and the