on houses of worship and that are specific to houses of worship violate the free exercise clause of the st amendment and now your honor's been the district court recognized and it's really not disputed that substantial question going to the merits and the district court your honors applied the wrong legal standard to make that determination when you have such an express restriction on houses of worship as is the case here in the diocese church's strict scrutiny applies and applying a strict scrutiny standard these particular restrictions are not in any way narrowly tailored to meet a clear interest that the government was so when you say that do you mean that any reference to houses of worship in addition to other types of businesses and so on counts and express   seem more closely related like concert halls movie theaters lecture halls aren't you actually being treated more favorably than  of business is more like a house of worship than another the constitutional standard is whether the houses of worship have been singled out for disparate treatment that treats them in some way worse than certain secular purposes or enterprises and here unquestionably that is the case over a wide swath of secular edge of prices is a house of worship more like a feeder than a household is different than mine when when my wife and daughter go to a target they could spend our stamp shopping there while stopping to be looking for household appliances getting food it's not it's a  premise to suggest that going to mass the most fundamental ritual in the catholic sects for forty five minutes or less no singing any more have to wear a mask socially just in six specifically is the problem from your point of view with the executive order is it that houses of worship should be considered essential is it that the just the very fact that they are in a separate category is the problem starts with that houses of worship are singled out for in square treatment a particular restriction that is different than many secular businesses who are treated more liberally and allowed to have  unlimited capacity or greater capacity that's you start from there once you start from there strict scrutiny has to apply and i think that's consistent with the central tenet guy's case in the circu and i think it's consistent with other cases around the country that once you have a you need a rule that expressly singles out houses of worship you have to apply strict scrutiny and the question becomes and i respectfully submit that as to the diocese churches and perhaps as to other houses of worship they're not narrowly tailored at all because the diocese has an unblemished record of success living under the twenty five percent cap it imposed on itself and if the alternative kept under governor cuomo executive order and it will continue to live by that it didn't challenge twenty five percent it's going to continue to live by that all the safety protocols it's impose says churches that are issue here are anywhere from two hundred and fifty up to about a one thousand or more so you could be talking to fifty people attending a mass or two hundred and fifty and i can tell you this year i'm saying that sunday after the governor's executive order went into effect and of course my client complied where the door had to be shut to them because you can't say the st nine come in to a large cathedral and everyone else was turned away and people were that singles out houses of worship or religious groups for for particular treatment and here that particular treatment is worse than many other secular businesses that are allowed to operate without to enjoin the state from enforcing it data driven and so are successful measures to curb coben spread in particular areas with elevated positive probe it tests rates before those rates exponentially grow and that's in stew starting with the marriage as the district court recognized and at the supreme court and federal courts across this country have held laws like executive order to a toothpick that treats religious gathering than comparable secular gatherings are neutral and generally applicable laws even if they apply distinct restrictions to religious gatherings the law in this circuit contrary to my friend assertion is quite three rapid you know result test kept for schools wishing to participate in contract churches as they as the diocese admitted any trial below they are not testing their congregants or requiring negative test results in any case comparing schools are not a valid secular comparing her to houses of worship as you cite in our brief work where groups of people are gathering together at the same time leaving at the same time for the express purpose of worshipping together but getting back to my friend's point on the other side that nearly having gathering restrictions for houses of worship trigger a strict scrutiny or it has said the opposite and central rabbinical the th said you ask whether the law regulates religious conduct rough sailing to regulate secular conduct people in red zones for a charge that with the normal capacity of you know over a one thousand people doesn't seem to be connected to any kind of i don't know record evidence or science or co sense and i don't even understand how that would test rational basis review can you speak to that blog she notes that if you have a gathering every number up you have from five people in a gathering whether it's ten people whether it's fifteen people whether it's twenty or twenty five people that incrementally is for essential businesses you know twenty five percent or thirty three percent that make some sense to me ten people no matter what the size doesn't and i'm wondering if you can expand your honor  mass gatherings there actually are similar size restrictions for example in our ins you know there is a restriction that only ten people whether they're indoor outdoor no matter what the size go on the st point i would say that they are treated no closing saying your clothes make some sense that ten people regardless of size is there any i guess limited is there any basis for that number that you can and twenty five or fewer face for fifty people and stage one was when the risk is higher that is the basis and then i would also point you would get into the dr blog declaration which says look if you have people saying if you had people gathering at the same time part of the rest i would like to emphasize is not just when you're indoors having a service it's when people go outside where the witnesses for you know for my friends on the other side that at the hearing below  that d you know typically there is some degree of intermingling you know outside after the service if you have thirty people even if they are spread out within the are to torreon and then they leave and intermingle because they know each other that raises the risk of spread and i'd like to say that the standard of review here is especially you know deferential as chief justice roberts said in south a restriction shouldn't be set subject to nd guessing by under the unelected federal judiciary which lacks the and in order to regulate and i'd like to also emphasize especially under rational basis review but this would be true even under strict scrutiny of the status entitle to regulate houses of worship generally  something you said i think i saw somewhere that the executive orders expire later this week is that right or can you just tell us if there's a status update in terms of whether it's going to be renewed or what happens next  just to address the potential business your honor i believe they're in the executive but the governor has a star eddie for a specified period i believe thirty days to issue an executive order and then can renew them you know for another thirty days and i see no reason why these executive orders will not be widened why this is you know to or to fix they would not be renewing because it's working we're seeing progress you know they're thirty day period expires later this week the understanding will be that it will be renewed for another thirty day period that this works that is what i would expect but i do not know i this is not something that i actually know so i don't  window that we can then approve then we'll try to do that if not let us know by the end of today and we'll come up with something will devise a schedule but i think th conclude with two brief points the st in terms of the church is taking additional member measures the district court found that the church does not require procedures to test negative there could easily be an asymptomatic carrier the cancer in organised you're still saying in the declaration below say nothing about ventilation or open windows and as the amicus brief in support of the stay chronicled that page thirteen and fourteen kogut outbreaks of the virus have resulted from religious gatherings despite physical distancing and other state precaution and i just like to include by saying even if this court finds that there we don't have a likelihood of success on the merits should still denying injunctive relief here because an injunction would not be in the public interest plaintiff's interest in having an indoor in person religious gathering a potentially hundreds of people in the very areas where positive