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Eastern District of New York - LIVE Database 1.5 (Revision 1.5.2)
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U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:20-cv-04834-KAM-RML

APPEAL,ACO

Agudath Israel of America et al v. Cuomo Assigned to: Judge Kiyo A. Matsumoto Referred to: Magistrate Judge Robert M. Levy Cause: 42:1983 Civil Rights Act Plaintiff Agudath Israel of America
Plaintiff Agudath Israel of Kew Garden Hills
Plaintiff Agudath Israel of Madison
Plaintiff Agudath Israel of Bayswater
Plaintiff Rabbi Yisroel Reisman
Plaintiff Rabbi Menachem Feifer
Plaintiff

Date Filed: 10/08/2020 Jury Demand: None Nature of Suit: 470 Racketeer/Corrupt Organization Jurisdiction: Federal Question
represented by Avi David Schick Troutman Pepper Hamilton Sanders LLP 875 Third Avenue New York, NY 10022 212-704-6000 Email: avi.schick@troutman.com ATTORNEY TO BE NOTICED
represented by Avi David Schick (See above for address) ATTORNEY TO BE NOTICED
represented by Avi David Schick (See above for address) ATTORNEY TO BE NOTICED
represented by Avi David Schick (See above for address) ATTORNEY TO BE NOTICED
represented by Avi David Schick (See above for address) ATTORNEY TO BE NOTICED
represented by Avi David Schick (See above for address) ATTORNEY TO BE NOTICED

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Steven Saphirstein

Eastern District of New York - LIVE Database 1.5 (Revision 1.5.2)
represented by Avi David Schick (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Andrew M. Cuomo Governor of the State of New York, in his ofﬁcial capacity

represented by Todd Alan Spiegelman NYS Attorney General's Ofﬁce 120 Broadway 24th Floor New York, NY 10271 (212)416-8661 Fax: (212)416-6075 Email: todd.spiegelman@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/08/2020 10/08/2020
10/08/2020 10/08/2020

# Docket Text
1 COMPLAINT against Andrew M. Cuomo ﬁling fee $ 400, receipt number ANYEDC13491523 Was the Disclosure Statement on Civil Cover Sheet completed -YES,, ﬁled by Rabbi Menachem Feifer, Agudath Israel of Madison, Steven Saphirstein, Agudath Israel of Kew Garden Hills, Agudath Israel of America, Agudath Israel of Bayswater, Rabbi Yisroel Reisman. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons) (Schick, Avi) (Entered: 10/08/2020)
2 Emergency MOTION for Order to Show Cause for Temporary Restraining Order and Preliminary Injunction by Agudath Israel of America, Agudath Israel of Bayswater, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Steven Saphirstein. (Attachments: # 1 [Proposed] Order to Show Cause, # 2 Memorandum in Support, # 3 Declaration of Avi Schick, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Afﬁdavit of Aharon Weisenfeld, # 18 Afﬁdavit of Avrohom Weinstock, # 19 Afﬁdavit of Steven Saphirstein, # 20 Afﬁdavit of Rabbi Menachem Feifer, # 21 Afﬁdavit of Rabbi Yisroel Reisman, # 22 Declaration of Avi Schick re: Notice, # 23 Declaration of Plaintiffs' Counsel Pursuant to Local Rule 6.1(d)) (Schick, Avi) (Entered: 10/08/2020)
Case Assigned to Judge Kiyo A. Matsumoto and Magistrate Judge Robert M. Levy. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) (Entered: 10/08/2020)
3 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notiﬁed that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a ﬁnal judgment. Attached to the Notice is a blank copy of the consent form that should be ﬁlled out, signed and ﬁled electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return

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or ﬁle the consent unless all parties have signed the consent. (Davis, Kimberly) (Entered: 10/08/2020)

10/08/2020

4 This attorney case opening ﬁling has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) (Entered: 10/08/2020)

10/08/2020 5 Summons Issued as to Andrew M. Cuomo. (Davis, Kimberly) (Entered: 10/08/2020)

10/08/2020

6 ORDER granting 2 Motion for Order to Show Cause. Show Cause Hearing by video set for 10/9/2020 at 01:30 PM before Judge Kiyo A. Matsumoto. Defendant must submit a brief in response by no later than 10/9/2020 at 11:00 AM; plaintiff may reply no later than 10/9/2020 at 1:00 PM. Plaintiff must immediately serve a copy of this Order and the papers on which it is based on Defendant no later than 5:30 PM on 10/8/2020. See attached Order for further details. Ordered by Judge Kiyo A. Matsumoto on 10/8/2020. (Brasky, Michael) (Entered: 10/08/2020)

10/08/2020

ORDER: The video link for parties and counsel participating in the emergency show cause hearing, scheduled for October 9, 2020, at 1:30 PM, is https://join.uc.uscourts.gov/invited.sf? secret=8n3nB0iOQsw_62kpnyxU2A&id=362279320. Those who wish to listen by phone may dial 571-353-2300 and enter the pin 362279320. Plaintiffs are ordered to immediately serve defendant with a copy of this Order and to note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 10/8/2020. (Brasky, Michael) (Entered: 10/08/2020)

10/08/2020

7 CERTIFICATE OF SERVICE by Agudath Israel of America, Agudath Israel of Bayswater, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Steven Saphirstein re Order, entered on October 8, 2020, at 6:24 pm EDT (Schick, Avi) (Entered: 10/08/2020)

10/09/2020

8 CERTIFICATE OF SERVICE by Agudath Israel of America, Agudath Israel of Bayswater, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Steven Saphirstein re 6 Order on Motion for Order to Show Cause,, 5 Summons Issued, 2 Emergency MOTION for Order to Show Cause for Temporary Restraining Order and Preliminary Injunction, 1 Complaint, (Schick, Avi) (Entered: 10/09/2020)

10/09/2020

9 NOTICE of Appearance by Todd Alan Spiegelman on behalf of All Defendants (aty to be noticed) (Spiegelman, Todd) (Entered: 10/09/2020)

10/09/2020 10 MEMORANDUM in Opposition to Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction ﬁled by Andrew M. Cuomo. (McAlister, Erin) (Entered: 10/09/2020)

10/09/2020 11 MEMORANDUM in Opposition to Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction *CORRECTED* ﬁled by Andrew M. Cuomo. (McAlister, Erin) (Entered: 10/09/2020)

10/09/2020

12 DECLARATION re 11 Memorandum in Opposition to Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction by Andrew M. Cuomo (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF) (McAlister, Erin) (Entered: 10/09/2020)

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13 REPLY in Support of Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction ﬁled by Agudath Israel of America, Agudath Israel of Bayswater, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Steven Saphirstein. (Schick, Avi) (Entered: 10/09/2020)
Minute Entry and Order for proceedings held before Judge Kiyo A. Matsumoto: Show Cause Hearing held on 10/9/2020. Appearances: Avi David Schick, Esq. for Plaintiffs; Todd Alan Spiegelman, Esq. for Defendant. For the reasons stated on the record, Plaintiffs' 2 Motion for a Temporary Restraining Order and Preliminary Injunction is DENIED. Plaintiffs failed to show, among other things, a likelihood of success on the merits of their claim that Executive Order 202.68 is unconstitutional or otherwise violates the Free Exercise Clause. A transcript of the hearing record and the court's ﬁndings will be ﬁled on the public docket. Ordered by Judge Kiyo A. Matsumoto on 10/9/2020. (Court Reporter Denise Parisi.) (Brasky, Michael) (Entered: 10/09/2020)
14 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on October 9, 2020, before Judge Matsumoto. Court Reporter/Transcriber Denise Parisi, Telephone number 7186132605. Email address: deniseparisi72@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request Transcript" located under "Other Filings - Other Documents". Redaction Request due 11/9/2020. Redacted Transcript Deadline set for 11/18/2020. Release of Transcript Restriction set for 1/18/2021. (Parisi, Denise) (Entered: 10/18/2020)
15 SUMMONS Returned Executed by Rabbi Menachem Feifer, Agudath Israel of Madison, Steven Saphirstein, Agudath Israel of Kew Garden Hills, Agudath Israel of America, Agudath Israel of Bayswater, Rabbi Yisroel Reisman. Andrew M. Cuomo served on 10/13/2020, answer due 11/3/2020. (Schick, Avi) (Entered: 10/19/2020)
16 NOTICE OF APPEAL by Agudath Israel of America, Agudath Israel of Bayswater, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Steven Saphirstein. Filing fee $ 505, receipt number ANYEDC-13542718. (Schick, Avi) (Entered: 10/19/2020)
Electronic Index to Record on Appeal sent to US Court of Appeals. 16 Notice of Appeal, Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 10/19/2020)
17 ORDER of USCA as to 16 Notice of Appeal, ﬁled by Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Agudath Israel of Bayswater, Agudath Israel of Madison, Agudath Israel of America, Agudath Israel of Kew Garden Hills, Steven Saphirstein. Appellants Agudath Israel of America et al., move for an emergency injunction pending appeal. Appellants seek a decision no later than October 23, 2020 at 5:00 pm. Appellee Andrew M. Cuomo opposes the motion.IT IS HEREBY ORDERED that the request for an administrative stay of the District Court decision denying Appellants' motion for a temporary restraining order and preliminary injunctions is DENIED. The motion is referred to the panel sitting on November 3, 2020. It will be heard in tandem with the motion seeking similar relief ﬁled in The Roman Catholic Diocese of Brooklyn v. Governor Andrew M. Cuomo, Docket No. 20-3590. Appellee's opposition to the motion is due by noon on October 27, 2020. Appellants reply is due by noon on October 29, 2020. Certiﬁed Copy Issued: 10/22/20. USCA #20-3572. (McGee, Mary Ann) (Entered: 10/23/2020)

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11/03/2020 18 Letter MOTION for pre motion conference on Governor Cuomo's proposed motion to dismiss by Andrew M. Cuomo. (Attachments: # 1 Exhibit Transcript of preliminary injunction hearing) (Spiegelman, Todd) (Entered: 11/03/2020)

11/04/2020

ORDER re: 18 Defendant's Request for a Pre Motion Conference. Plaintiffs are respectfully directed to ﬁle a response to Defendant's pre motion conference letter by Friday, November 6, 2020. Ordered by Judge Kiyo A. Matsumoto on 11/4/2020. (Urquiola, Rebecca) (Entered: 11/04/2020)

11/06/2020

19 RESPONSE in Opposition re 18 Letter MOTION for pre motion conference on Governor Cuomo's proposed motion to dismiss ﬁled by All Plaintiffs. (Schick, Avi) (Entered: 11/06/2020)

11/09/2020

ORDER deferring ruling on 18 Motion for Pre Motion Conference. The court will hold a pre motion conference after the Second Circuit decides plaintiffs' motion for an injunction pending appeal from this Courts denial of plaintiffs' motion for a preliminary injunction. The court also orders a stay of discovery pending the pre motion conference. Ordered by Judge Kiyo A. Matsumoto on 11/9/2020. (Urquiola, Rebecca) (Entered: 11/09/2020)

11/10/2020 20 ORDER of USCA as to 16 Notice of Appeal, ﬁled by Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Agudath Israel of Bayswater, Agudath Israel of Madison, Agudath Israel of America, Agudath Israel of Kew Garden Hills, Steven Saphirstein. Upon due consideration, and for the foregoing reasons, it is hereby ORDERED that the Appellants motions for injunctions pending appeal are DENIED. Among other inﬁrmities in their arguments, the Appellants have failed to meet the requisite standard for an injunction pending appeal. See New York v. U.S. Dept of Homeland Sec., 974 F.3d at 214. It is further ORDERED that the motion to expedite the appeals is GRANTED. See document for further details. Certiﬁed Copy Issued: 11/9/20. USCA #20-3572 and 20-3590. This document also reﬂects case 20-cv-4844. (Attachments: # 1 USCA Dissenting Opinion) (McGee, Mary Ann) (Entered: 11/10/2020)

11/10/2020

ORDER: In light of the Second Circuit's Order denying Appellants' motions for injunctions pending appeal, this Court orders the parties to confer and advise the Court jointly how they intend to proceed given the decision. Ordered by Judge Kiyo A. Matsumoto on 11/10/2020. (Urquiola, Rebecca) (Entered: 11/10/2020)

11/13/2020 21 Letter MOTION to Adjourn Conference on Defendants' proposed Motion to Dismiss by Andrew M. Cuomo. (Spiegelman, Todd) (Entered: 11/13/2020)

11/13/2020 22 Letter MOTION for Preliminary Injunction Pending Appeal by Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Yisroel Reisman, Steven Saphirstein. (Schick, Avi) (Entered: 11/13/2020)

11/13/2020

ORDER re: 22 Plaintiff's Motion for Preliminary Injunction. Defendant is respectfully directed to ﬁle a response to Plaintiff's motion for preliminary injunction by Monday, November 16, 2020. Ordered by Judge Kiyo A. Matsumoto on 11/13/2020. (Urquiola, Rebecca) (Entered: 11/13/2020)

11/13/2020

ORDER re 21 Motion to Adjourn Conference. The court grants the parties joint motion to adjourn the pre-motion conference on defendants proposed motion to dismiss this action, until after the Second Circuit decides plaintiffs expedited appeal of this courts October 9, 2020 denial of plaintiffs request for injunctive relief. Ordered by Judge Kiyo A. Matsumoto on 11/13/2020. (Williams-Jackson, Sandra) (Entered: 11/13/2020)

11/16/2020

23 RESPONSE to Motion re 22 Letter MOTION for Preliminary Injunction Pending Appeal ﬁled by Andrew M. Cuomo. (Spiegelman, Todd) (Entered: 11/16/2020)

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11/18/2020
12/01/2020 12/04/2020 12/07/2020 12/28/2020
12/29/2020 12/31/2020

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24 ORDER of USCA as to 16 Notice of Appeal, ﬁled by Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Agudath Israel of Bayswater, Agudath Israel of Madison, Agudath Israel of America, Agudath Israel of Kew Garden Hills, Steven Saphirstein. The Appellants now move for emergency injunctions pending appeal and to expedite their appeals. For the following reasons, the Appellants motions for injunctions pending appeal are DENIED, and the motion to expedite their appeals is GRANTED. See document for further details. This USCA Opinion and Dissenting Opinion are endorsed on the USCA Opinion. Certiﬁed Copy Issued: 11/18/20. USCA #20-3572 and 20-3590. (Attachments: # 1 Judge Park's Dissenting Opinion) (McGee, Mary Ann) (Entered: 11/18/2020)
Order regarding Plaintiffs' 22 Motion for Preliminary Injunction pending appeal. In light of the United States Supreme Court's November 25, 2020 decision granting the plaintiffs injunctive relief pending the appeal before the United States Court of Appeals for the Second Circuit, the parties are directed to confer and advise this court via ECF by Friday, December 4, 2020, of their positions regarding the effect of the Supreme Court's decision on plaintiffs' motion for an injunction pending appeal. Ordered by Judge Kiyo A. Matsumoto on 12/1/2020. (Urquiola, Rebecca) (Entered: 12/01/2020)
25 Joint MOTION to Stay Resolution of Plaintiffs' Motion for Preliminary Injunction Pending Appeal by Andrew M. Cuomo. (Spiegelman, Todd) (Entered: 12/04/2020)
ORDER granting 25 Joint Motion to Stay. Plaintiff's motion for an injunction pending appeal will be held in abeyance pending the resolution of plaintiff's appeal before the United States Court of Appeals for the Second Circuit from this court's denial of plaintiff's application for a preliminary injunction. Ordered by Judge Kiyo A. Matsumoto on 12/7/2020. (Urquiola, Rebecca) (Entered: 12/07/2020)
26 ORDER of USCA as to 16 Notice of Appeal, ﬁled by Rabbi Menachem Feifer, Rabbi Yisroel Reisman, Agudath Israel of Bayswater, Agudath Israel of Madison, Agudath Israel of America, Agudath Israel of Kew Garden Hills, Steven Saphirstein. For the reasons set forth above, with respect to the Dioceses appeal, No. 20-3590, the District Courts Order is Reversed. We Remand to the District Court with directions to grant a preliminary injunction against enforcement of the Orders 10- and 25-person occupancy limits on houses of worship. With respect to Agudath Israels appeal, No. 203572, the District Courts Order is likewise reversed to the extent that it denied Agudath Israels motion for a preliminary injunction as to the Orders ﬁxed capacity limits, and we Remand to the District Court with directions to grant a preliminary injunction against enforcement of those limits. The District Courts Order is vacated to the extent that it denied a preliminary injunction against enforcement of the Orders 25% and 33% capacity limits on houses of worship. As to those limits, we Remand for further proceedings consistent with this Opinion, including the application of strict scrutiny in the analysis of Agudath Israels likelihood of success on the merits. In the interest of judicial economy, all further proceedings and subsequent appeals shall be referred to this panel. See document for further details. Certiﬁed Copy issued on 12/28/2020. USCA # 20-3572. Please Note the USCA Mandate has not yet been issued. Further Note this USCA Order is endorsed on the USCA Opinion decided on 12/28/2020. (Mejia, Salomon) (Entered: 12/28/2020)
ORDER RE 26 Order of USCA as to 16 Notice of Appeal. In light of the United States Court of Appeals for the Second Circuit's December 28, 2020 decision, the parties are ordered to confer and jointly advise this court as to how they intend to proceed by Monday, January 4, 2021. Ordered by Judge Kiyo A. Matsumoto on 12/29/2020. (Urquiola, Rebecca) (Entered: 12/29/2020)
27 First MOTION for Extension of Time to File joint letter advising the Court on how the

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parties intend to proceed by Andrew M. Cuomo. (Spiegelman, Todd) (Entered: 12/31/2020)
ORDER granting 27 Motion for Extension of Time to File. The parties are ordered to confer and jointly advise this court as to how they intend to proceed by Monday, January 11, 2021. Ordered by Judge Kiyo A. Matsumoto on 1/4/2021. (Urquiola, Rebecca) (Entered: 01/04/2021)
28 Letter - Joint letter regarding case status by Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Yisroel Reisman, Steven Saphirstein (Schick, Avi) (Entered: 01/11/2021)

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 Case 1:20-cv-04834-KAM-RML Document 1 Filed 10/08/20 Page 1 of 21 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF KEW GARDEN HILLS, AGUDATH ISRAEL OF MADISON, AGUDATH ISRAEL OF BAYSWATER, RABBI YISROEL REISMAN, RABBI MENACHEM FEIFER, and STEVEN SAPHIRSTEIN,
Plaintiffs,

Civil Action No._1_:2_0_-_c_v_-4_8_3_4___

vs

ANDREW M. CUOMO, Governor of the State of New York, in his official capacity,

Defendant.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, by and through their undersigned counsel Troutman Pepper Hamilton Sanders

LLP, respectfully allege as follows:

PRELIMINARY STATEMENT

1.

Orthodox Jews celebrate three holidays on October 9, 10, and 11, respectively.

These holidays each have special prayers and rituals that are incorporated into worship services.

2.

Orthodox Jews will gather at their synagogues for collective prayer, Torah readings,

remembrances of deceased loved ones, and other rituals in observance of Hoshanah Rabbah,

Shmini Atzeres, and Simchas Torah.

3.

Forty-eight hours before the onset of these holidays, Defendant Governor Cuomo

issued an Executive Order that singles out and discriminates against all houses of worship—and

synagogues in particular—by imposing occupancy and gathering restrictions that make it

impossible for Orthodox Jews to comply with both their religious obligations and the Order.

Case 1:20-cv-04834-KAM-RML Document 1 Filed 10/08/20 Page 2 of 21 PageID #: 2

4.

In doing so, Defendant explicitly targeted the Orthodox Jewish community,

declaring that if the “orthodox community” does not agree with his rules “the state will take

action.” See Professor Josh Blackman, New York Governor Cuomo: “I’m Going to Say to the

Orthodox Community Tomorrow If You Don’t Agree Then We Will Have to Close Down Your

Religious Institutions,” The Volokh Conspiracy (Oct. 6, 2020) https://reason.com/

2020/10/06/new-york-governor-cuomo-im-going-to-say-to-the-orthodox-community-tomorrow-

if-you-dont-agree-then-we-will-have-to-close-down-your-religious-institutions/.

5.

Defendant’s Executive Order and the restrictions it contains will disrupt the

religious observance of tens of thousands of Orthodox Jews in New York State, depriving them of

their religious worship and holiday observance. The Executive Order requires enforcement of its

restrictions to begin on Friday, October 9, which is Hoshanah Rabbah, the first of these three

holidays.

6.

Defendant has imposed these onerous and discriminatory new restrictions despite

the fact that even he concedes he has not enforced the existing restrictions on houses of worship

that already impose capacity limits and health requirements. Plaintiffs have completely complied

with these rules, and Defendant does not contend otherwise.

7.

Defendant’s Executive Order violates Plaintiffs’ constitutional rights under the

Free Exercise Clause of the First Amendment in two separate ways, both independently sufficient

to justify the temporary restraining order and all other equitable relief that they are requesting.

8.

First, Defendant’s restrictions are facially discriminatory toward religious practices

when compared to similar secular activities.

-2-

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9.

Second, Defendant’s explicit targeting of religious institutions and communities for

these restrictions is a punitive attempt to infringe upon Plaintiffs’ religious services because of

their religious nature.

10. Plaintiffs will suffer imminent, irreparable harm because of Defendant’s actions.

By depriving Plaintiffs and their congregants of the critical religious worship and practices

associated with these upcoming holidays, Defendant has trampled on their constitutional right to

the Free Exercise of Religion, an injury that cannot be remedied with a later money judgment.

11. This action therefore seeks immediate judicial relief from Defendant’s

discriminatory restrictions by way of a temporary restraining order, followed by a preliminary and

permanent injunction and a declaratory judgment that the Executive Order is unconstitutional and

void because it deprives Plaintiffs of their constitutional rights.

PARTIES, JURISDICTION, AND VENUE

12. Plaintiff Agudath Israel of America, founded in 1922, is a national grassroots

Orthodox Jewish organization. Among its other functions and activities, Agudath Israel articulates

and advances the position of the Orthodox Jewish community on a broad range of legal issues

affecting religious rights and liberties in the United States. Agudath Israel regularly intervenes at

all levels of government to advocate and protect the interests of the Orthodox Jewish community

in the United States in particular and religious liberty in general. Agudath Israel has a large number

of Agudath-Israel affiliated synagogues throughout the country, with close to 70 in New York

State, and advocates for synagogues whenever their rights are threatened. Agudath Israel of

America’s principal place of business is located at 42 Broadway, 14th Floor, New York, NY

10004.

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13. Plaintiff Agudath Israel of Kew Garden Hills is an Orthodox Jewish Synagogue located at 14737 70th Rd., Flushing, NY 11367.
14. Plaintiff Agudath Israel of Madison is an Orthodox Jewish Synagogue located at 2122 Ave. S, Brooklyn, NY 11229.
15. Plaintiff Agudath Israel of Bayswater is an Orthodox Jewish Synagogue located at 2422 Bayswater Ave., Far Rockaway, NY 11691.
16. Plaintiff Rabbi Yisroel Reisman is the Rabbi at Agudath Israel of Madison, located at 2122 Ave. S, Brooklyn, NY 11229. Rabbi Reisman resides in Brooklyn, New York.
17. Plaintiff Rabbi Menachem Feifer is the Rabbi at Agudath Israel of Bayswater, located at 2422 Bayswater Ave., Far Rockaway, NY 11691. Rabbi Feifer is a Resident of Far Rockaway, New York.
18. Plaintiff Steven Saphirstein is the Secretary of Agudath Israel of Kew Garden Hills, located at 14737 70th Rd., Flushing, NY 11367. Mr. Saphirstein is a resident of Queens, New York.
19. Defendant Governor Andrew M. Cuomo is the Governor of the State of New York and is acting in his official capacity at all times relevant to the allegations herein. Defendant’s principal place of business is located at the State Capitol Building, Albany, New York.
20. This action raises federal questions under the First Amendment to the United States Constitution and under federal law, 28 U.S.C. §§ 2201 and 2202, as well as 42 U.S.C. §§ 1983 and 1988.
21. This Court has jurisdiction over these federal claims under 28 U.S.C. §§ 1331 and 1343.
-4-

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22. This Court has the authority to grant the requested injunctive relief under 28 U.S.C. § 1343(3), the requested declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Plaintiffs’ prayer for costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988 and 28 U.S.C. § 1920.
23. Venue is proper in the Eastern District pursuant to 28 U.S.C. § 1391, as a substantial part of the events giving rise to the claims herein arise in this District.
BACKGROUND New York State Restrictions 24. To combat the “transmission of COVID-19” and the “threat that COVID-19 poses to the health and welfare” of the State of New York, Defendant issued Executive Order No. 202 on March 7, 2020, declaring a disaster emergency in New York.1 25. In the following months, Defendant issued dozens of orders imposing business closures, in-person gathering restrictions, and other requirements throughout the State.2 26. In May of this year, the State announced that it would allow a phased, regional approach for non-essential businesses to reopen and other conduct to resume, based on regions satisfying certain health-related metrics specified by the New York Department of Health.3 27. Pursuant to that regional plan, Defendant has issued orders exempting non-essential businesses and other conduct from his gathering and closure restrictions in certain regions of the State, provided that such entities operate subject to Department of Health guidance.
1 Available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.pdf. 2 See generally https://www.governor.ny.gov/keywords/executive-order. 3 See, e.g., https://forward.ny.gov/.
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28. Among other things, the Department of Health guidance requires such businesses and other conduct to adhere to certain health and safety protocols, which often include capacity limitations on maximum occupancy.
29. All regions of the State currently are in the final phase (Phase 4) of that plan.4 30. For religious services in Phase 4,5 the State’s guidelines impose a restriction of “no more than 33% of the maximum occupancy for a particular area for services occurring indoor; or no more than 50 people for services occurring outdoors.” 31. In Soos v. Cuomo, ___ F. Supp. 3d ___, 2020 U.S. Dist. LEXIS 111808 (N.D.N.Y. June 26, 2020), the district court enjoined Defendant’s previous attempt to impose a 25% indoorcapacity limitation on houses of worship, concluding that this limitation imposed more restrictive capacity limits than on comparable secular activity that allowed 50% capacity, such as “offices, retail stores that are not inside of shopping malls, [ ] salons,” and restaurants, and restrained Defendant from enforcing such limitations on houses of worship greater than those imposed for such comparable secular activity. Id. at *29–30, 25. 32. Despite the extensive existing restrictions on houses of worship and worship services, Defendant has publicly conceded that there has been no enforcement of those requirements against persons who have not voluntarily complied with them.
Defendant’s “Redlining” Initiative and Executive Order 202.68 33. Rather than enforce these existing rules—which can both be effective at stopping the transmission of COVID-19 and allow for religious services and safety to coexist—earlier this
4 See https://forward.ny.gov/phase-four-industries (“All regions of the state have entered Phase 4 of reopening.”). 5 Available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/ReligiousandFuneralServices SummaryGuidance.pdf.
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week Defendant imposed punitive new restrictions that create conflict between religious services and government mandates.
34. On October 5, Defendant held a press conference to announce the new restrictions he intended to impose.6 At this press conference, Defendant explained that his new restrictions are designed to target religious institutions.
35. Defendant stated that “[r]eligious institutions” and “mass gatherings,” can spread COVID-19. Further, Defendant singled out “[r]eligious institutions” as “the greatest potential” threat, declaring that “[w]e know religious institutions have been a problem.”
36. During this press conference, Defendant displayed pictures of Orthodox Jews, including a fourteen-year-old photo that was described as “recent.”7
37. Defendant also stated that he planned to “meet with members of the ultra-Orthodox community tomorrow,” and threatened that “we’ll close the [religious] institutions down” if “you do not agree to enforce the rules.”
6 Available at https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-governor-cuomo-updates-newyorkers-states-progress-during-1. 7 Available at https://www.flickr.com/photos/governorandrewcuomo/albums/72157716268567076.
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38. The following day, on October 6, 2020, Defendant announced at a press conference a “new cluster action initiative,” intended to curb the transmission of COVID-19.8
39. This new initiative imposes selective and discriminatory gathering restrictions on houses of worship, which are given their own category of restriction.
40. Defendant admitted that he intended his restrictions to be “most impactful on houses of worship” because “[t]he problem is mass gatherings and houses of worship.”
41. To that end, the initiative declares COVID-19 “high density” zones by neighborhood, and assigns such zones with a color—red, orange, or yellow—each of which has their own set of COVID-19 restrictions.
42. Defendant also released a chart9 explaining the particular restrictions applicable to each zone, and noting that the “cluster action initiative . . . divide[s] clusters and the areas around them into three categories with successively higher restrictions within each one”:
8 Available at https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-governor-cuomo-announcesnew-cluster-action-initiative. 9 See https://www.flickr.com/photos/governorandrewcuomo/albums/72157716284149688.
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43. In areas that the Defendant decides are in the “Red Zone – Cluster Itself,” Defendant restricts houses of worship to a 10-person maximum limit.
44. “Essential businesses” in the red zone, however, are exempted from the restrictions. The Executive Order, released later that night, also permits “essential” gatherings. No definition of essential gatherings has ever been provided.
45. In areas that Defendant determines are in the “Orange Zone – Warning Zone,” Defendant restricts houses of worship to a 25-person maximum limit.
46. In this zone, Defendant exempts most businesses from the restrictions, allowing them to operate without any specified capacity limitation, and “[c]losing” only “high-risk nonessential businesses, such as gyms and personal care.”
47. Finally, in areas Defendant determines are in the “Yellow Zone – Precautionary Zone,” Defendant restricts houses of worship to 50% capacity.
48. Defendant exempts all businesses, including restaurants for indoor and outdoor dining service, and schools, from these “Yellow Zone” restrictions, allowing them to remain
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“[o]pen” without any specified capacity limitation, except for limiting each restaurant table to a maximum of four persons.
49. To enforce these new restrictions, Defendant announced that sponsors of worship services in violation of his rules will be subject to fines of $15,000.
50. Consistent with these announcements, Defendant issued Executive Order 202.68 (“EO 202.68”) on October 6.10 This Order directs the Department of Health to adopt the “most severe” mitigation measures in “red zones,” precluding all “[n]on-essential gatherings,” prohibiting all non-essential employees from in-person work, and specifically “subject[ing]” all houses of worship “to a capacity limit of 10 people.” Id. at 2.
51. EO 202.68 mandates that “moderate severity warning areas, or ‘orange zones,’” are allowed non-essential gatherings of 10 people or less, permits non-essential businesses—except for gyms, fitness centers or classes, barbers, hair salons, spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis, and all other personal care services—to return to in-person work, and restricts houses of worship “to a maximum capacity limit of . . . 25 people.” Id.
52. Finally, in “precautionary” or “yellow zones,” non-essential gatherings are limited to 25 or fewer people, “houses of worship shall be subject to a capacity limit of 50% of its maximum occupancy and shall adhere to Department of Health guidance,” whereas restaurants and taverns are permitted indoor and outdoor seating for all parties of four or less, and children can return to in-person school. Id.
53. EO 202.68 also announced that it “shall be enforced no later than Friday, October 9, 2020.” Id.
10 Available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO202.68.pdf.
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54. At his October 6 press conference, Defendant also declared that “[t]he state is going to take over the enforcement oversight in all the hotspot clusters.”
Jewish Houses of Worship Are A Vital Component of Jewish Religious Practice 55. Synagogues are a necessary and critical component of Jewish life. 56. Plaintiff synagogues and dozens or hundreds more just like them each serve several hundred men and woman every week and have legal occupancy capacities that permit them to have several hundred worshippers in the building at any one time. 57. Plaintiff Agudath Israel of Kew Garden Hills holds daily worship services, serving over 150 men and women each week. It is located in a geographic area affected by Defendant’s gathering restrictions on houses of worship. Without such restrictions it has a legal capacity of 400 persons in its main sanctuary. 58. Plaintiff Agudath Israel of Madison holds worship services, conducted every day, serving over 300 men and women every week. It is located in a geographic area affected by Defendant’s gathering restrictions on houses of worship. Without such restrictions it has a legal capacity of 186 persons in its main sanctuary, with an additional capacity of more than 145 persons each in its lower and upper levels. 59. Plaintiff Agudath Israel of Bayswater holds daily worship services and serves over 150 men and women every week. It is located in a geographic area affected by Defendant’s gathering restrictions on houses of worship. Without such restrictions it has a legal capacity of 250 persons in its main sanctuary. 60. The congregants’ spiritual connection to the synagogue and its community is intense. The spiritual role of the synagogue and its community is especially critical during these unprecedented and challenging times.
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61. A high point of this communal life takes place during the current holiday period, which began nearly three weeks ago with Rosh Hashona, the Jewish New Year.
62. The holiday period culminates with three special days on the Jewish calendar. These days are known as Hoshanah Rabbah, Shmini Atzeres, and Simchas Torah, and this year they are observed on October 9, October 10, and October 11, respectively.
63. Hoshanah Rabbah, observed on October 9, marks the conclusion of the Days of Judgment that began with Rosh Hashona. There are special, additional services and rituals that are required on Hoshanah Rabbah, including reading from a Torah scroll, seven additional prayers, and the traditional beating of a willow branch in the synagogue. This tradition dates back 2,000 years, to the times of the Temple. Religious services on Hoshanah Rabbah take at least ninety to one hundred and twenty minutes.
64. Saturday, October 10, is the holiday of Shmini Atzeres. Among the special features of the holiday is the Yizkor service, which is the Prayer for Departed Relatives. This prayer is only recited four times a year and, after this Saturday, will not be recited again until Passover in April. These additional prayers by men and women alike are especially emotional, led by a Rabbi, require approximately 15 additional minutes of service, and are only offered in group prayer.
65. Shmini Atzeres is also the only day of the year that Orthodox Jews read Ecclesiastes, which they accept as the Book of Wisdom, in shul. In many synagogues, including that of Plaintiff Agudath Israel of Madison, Ecclesiastes is read from a parchment and requires a trained cantor.
66. Simchas Torah, falling on October 11, is literally translated as “the Joy of the Torah,” and is a celebration of the completion of the annual cycle of Torah readings. As part of this celebration, each congregant is called to the Torah for a short reading. Traditionally, the Rabbi
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is then called to read the final portion of the Torah, after which the first portion of the Torah is read to begin the new cycle.
67. Practitioners of Judaism observe these holidays primarily in the synagogue. Plaintiffs and their congregants understand that joining together to pray is more than a religious ceremony; it is an emotional connection to God and community.
Executive Order 202.68 Makes It Impossible for Orthodox Jews to Conduct Services 68. Defendant’s EO 202.68 renders it impossible for Plaintiffs’ synagogues and their
congregants to fulfill their religious obligations. 69. For all synagogues in the “red zone,” including Plaintiff Agudath Israel of Madison,
EO 202.68 limits attendance at worship services to 10 individuals. 70. Under these new restrictions, then, it is impossible for Plaintiffs to both comply
with the State-issued restrictions on houses of worship and fulfill their religious obligations. 71. For example, Hoshanah Rabbah services, Friday, October 9, take approximately
ninety to one hundred and twenty minutes. For a synagogue the size of Plaintiff Agudath Israel of Madison, the capacity limits would require over twenty such services on Friday morning to serve the entire congregation. That is simply impossible.
72. Under the existing COVID-19 capacity limitations, however, Plaintiffs use all of their various spaces and outdoor settings to divide their congregants into multiple services.
73. Plaintiffs also cannot conduct Shmini Atzeres services, on Saturday, October 10, under the new restrictions. The additional services on Shmini Atzeres, including Yizkor (the Prayer for Departed Relatives), add roughly fifteen minutes to the services, and are only offered in group-prayer settings. Under the new restrictions, Plaintiffs and their congregants will suffer
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the particularly devastating harm of being deprived these special prayers, which are only recited four times a year.
74. Under the existing COVID-19 capacity limits, Plaintiffs are able to conduct such services.
75. The new restrictions embodied in the Executive Order also make it impossible for Plaintiffs to complete all required prayers and readings for Simchas Torah, on Sunday October 11. This “Joy of the Torah” service requires individual, short Torah readings by all congregants, in addition to the regular services. It is impossible for Plaintiffs to hold such services for all of their congregants while complying with the ten-person capacity limits.
76. Under the existing COVID-19 capacity limits, Plaintiffs are be able to comply with their religious and civil dictates for the entirety of the holiday period.
77. Although Defendant’s EO 202.68 discriminates against all religions by singling out houses of worship for more restrictive treatment than similarly situated secular institutions, the order disproportionately impacts Orthodox Jewish services.
78. Because Orthodox Jews are prohibited by their faith from engaging in vehicular travel on the Saturday Sabbath and religious holidays, they must walk to their synagogues, which are generally located within the communities where their congregants reside.
79. Although Orthodox Jews can continue to drive outside of restricted areas to go to work or engage in other permitted activities outside of prohibited zones, the restrictions bar Orthodox Jews principally from attending religious services, as they are unable to travel to synagogues outside of their restricted zones.
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80. Without minimizing the unconstitutional impact that the Executive Order has on practitioners of other faiths, they at least retain the ability to drive to houses of worship in nearby, unrestricted zones, whereas Orthodox Jews are simply unable to do so.
81. There are hundreds of synagogues in the presently delineated “restricted zones,” with many tens of thousands of Orthodox Jews residing in those communities. Therefore, the brunt of the religious burden imposed by Defendant’s EO 202.68 falls upon the Orthodox Jewish community, who, alone, are totally deprived of the ability to participate in religious services.
Jewish Houses of Worship Protect Against the Transmission of COVID-19 82. Plaintiffs and other Jewish houses of worship have adopted rigorous health protocols and have altered religious congregation to safeguard against the spread of COVID-19. 83. Prior to the Executive Order, Plaintiffs have followed all closure, capacity limitation, social distancing, and masking requirements imposed by the State. 84. These include the capacity limits currently imposed upon all religious activities. 85. Plaintiffs suspended services in mid-March, and remained closed until they were granted permission to resume services around Memorial Day. 86. Since resuming services, Plaintiffs have at all times operated in conformity with all health requirements. 87. In addition to capacity limits and masking, Plaintiff and other synagogues have erected plexiglass barriers between those leading services and reading the Torah and others. 88. They have also split the traditional congregational service into separate gatherings. This accommodates every congregant while ensuring that they maintain proper social distancing. 89. Plaintiffs and other synagogues require congregants to wear masks during the entire service, and congregants have fully complied with this requirement.
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90. For the upcoming holidays, Plaintiffs have previously announced additional limitations to ensure the safety of all during these important religious services and rituals.
91. By way of example, a principal part of the service typically has the congregation circle the synagogue together, but Plaintiffs instead have had only one individual perform that ritual, as the rest of the congregation stands in place in prayer.
92. By implementing rigorous health and safety protocols, Plaintiffs have been able to allow their members to continue to practice their religious beliefs while still safeguarding from the spread of COVID-19.
COUNT I Violation of the First Amendment to the United States Constitution
42 U.S.C. § 1983 93. Plaintiffs incorporate and reallege Paragraphs 1 through 92 as if fully set forth herein. 94. The Free Exercise Clause of the First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, forbids the States from enacting laws inhibiting the free exercise of religion. See Wisconsin v. Yoder, 406 U.S. 205, 213–14, 232 (1972); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). Accordingly, Plaintiffs have a constitutional right to freely exercise their religious beliefs and practices by providing a religious upbringing for their children and families. See Wisconsin v. Yoder, 406 U.S. 205, 213–14, 232 (1972). 95. The government violates the Free Exercise Clause when it burdens a person’s religious exercise through a law that is not neutral or generally applicable, unless the government can satisfy strict scrutiny. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).
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96. A law may fail the First Amendment’s neutrality requirement in two ways: (1) if it the law regulates motivated conduct, but not similar secular conduct, Cent. Rabbinical Congress of the U.S. & Can. v. NYC Dep’t of Health & Mental Hygiene, 763 F.3d 183, 195 (2d Cir. 2014), or is specifically directed at religious practice; or (2) if the government targeted the law at religiously motivated conduct for special restrictions, even if the text of the law is facially neutral, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018); Lukumi, 508 U.S. at 540.
97. EO 202.68 burdens Plaintiffs’ religious beliefs by restricting the number of individuals who may gather in houses of worship, at risk of substantial financial penalties. Plaintiffs are sincere practitioners of Judaism who believe that attending religious services at the synagogue, especially on Jewish holidays, is a critical and necessary component of their religious practices and beliefs. EO 202.68’s restrictions make it impossible for Plaintiffs and their congregants and others to conduct services on Jewish holidays observed on October 9, 10, and 11, 2020, thereby infringing upon Plaintiffs’ ability to comply with religious dictates.
98. EO 202.68 is not neutral, and violates the Free Exercise Clause for two independently sufficient reasons.
99. First, EO 202.68 is not neutral because it is facially discriminatory, as the restrictions in each zone expressly impose gathering restrictions on “houses of worship” and not other secular conduct.
100. In areas designated to be in the “Yellow Zone,” EO 202.68 restricts houses of worship to 50% capacity while permitting all businesses, including restaurants for indoor and outdoor dining service, and schools, to remain open (subject to Department of Health guidance). Further, the secular conduct that EO 202.68 permits to open at greater capacity than 50% similarly
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constitutes gatherings of individuals for a prolonged period of time—the very characteristics of public congregation used to justify restrictions to combat the transmission of COVID-19.
101. In areas designated to be in the “Orange Zone,” EO 202.68 restricts worship services to a maximum of 25 people while closing only non-essential businesses, for which there is a higher risk associated with the transmission of the COVID-19 virus. The “non-essential” businesses that EO 202.68 permits to open at greater capacity than 50%, which include offices and retail, among other things, similarly constitute gatherings of individuals for a prolonged period of time that should trigger the same concerns relating to the spread of COVID-19 that Defendant claims justify restrictions on houses of worship.
102. In areas designated to be in the “Red Zone – Cluster Itself,” EO 202.68 restricts houses of worship to a 10-person maximum. These restrictions similarly facially target religious practice. Moreover, EO 202.68 exempts all essential gatherings and businesses from such restrictions, yet it fails to define “essential” gatherings not subject to the gathering restrictions.
103. Second, EO 202.68 is not neutral because it infringes on the religious practices of the Orthodox Jewish community because of their religious motivation. Defendant’s actions and contemporaneous statements establish this lack of neutrality.
104. The day before issuing his restrictions, Defendant singled out houses of worship for discriminatory treatment, stating: “Religious institutions are mass gatherings and raise the greatest potential” for the spread of COVID-19, and that “[w]e know religious institutions have been a problem.” Defendant further threatened “religious institutions” and “members of the ultraOrthodox community” that “[i]f you do not agree to enforce the rules, then we’ll close the [religious] institutions down.”
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105. Defendant’s order requires enforcement of its restrictions beginning October 9— the first of the three upcoming Jewish holidays, ensuring it will be impossible for Plaintiffs to conduct services for all of their congregants.
106. Furthermore, the brunt of Defendant’s restrictions falls disparately on Orthodox Jews, who do not use vehicular travel on Sabbath or on religious holidays and thus are unable to travel to houses of worship for religious practice in other, permitted areas.
107. Given its lack of neutrality, EO 202.68 can only survive a Free Exercise Clause challenge if it satisfies the exceptionally demanding strict-scrutiny review, which requires it to further a compelling government interest in a narrowly tailored way.
108. Here, EO 202.68 is not narrowly tailored because it is massively underinclusive in relation to its goals: it exempts secular activity—all businesses and restaurants in counties in the Yellow Zone, and most businesses in counties in the Orange Zone, in which individuals congregate and remain in close proximity for long periods—that endangers the health and welfare of the public through the transmission of COVID-19 in a similar or greater degree than do houses of worship.
109. EO 202.68 will cause irreparable harm to Plaintiffs absent preliminary injunctive relief. EO 202.68 deprives Plaintiffs of their free-exercise rights during three Jewish holidays, and “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 473 (1976) (plurality op.); see also LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 426 (2d Cir. 1995).
110. Defendant would suffer no harm if EO 202.68 were preliminarily enjoined, because Plaintiffs have guarded against the spread of COVID-19 with their own comprehensive health and safety protocols, and Plaintiffs have been fully compliant with all State and local mandates since the onset of the pandemic.
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Case 1:20-cv-04834-KAM-RML Document 1 Filed 10/08/20 Page 20 of 21 PageID #: 20 111. Injunctive relief would further the public interest by protecting Plaintiffs’
constitutional rights and treating religious and secular conduct in comparable ways. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant the following relief: (a) a temporary restraining order, followed by a preliminary and final injunction restraining Defendant, and all those acting in concert with him, from enforcing EO 202.68; (b) a declaratory judgment that the enforcement of EO 202.68 is unconstitutional, both facially and as applied to plaintiffs; (c) an award of costs of this litigation, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920; and (d) such other and further relief as the Court may deem just and proper.
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This 8th day of October, 2020.
/s/Avi Schick Avi Schick avi.schick@troutman.com TROUTMAN PEPPER HAMILTON SANDERS LLP 875 Third Avenue New York, NY 10022 (212) 704-6000 Misha Tseytlin (NY Bar No. 4642609) misha.tseytlin@troutman.com *Pro Hac Vice Application Forthcoming W. Alex Smith (GA Bar No. 532647) alex.smith@troutman.com *Pro Hac Vice Application Forthcoming Sean T.H. Dutton (IL Bar No. 6319132) sean.dutton@troutman.com *Pro Hac Vice Application Forthcoming Kevin M. LeRoy (WI Bar No. 1105053) kevin.leroy@troutman.com *Pro Hac Vice Application Forthcoming Attorneys for Plaintiffs
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 Case 1:20-cv-04834 Document 2-2 Filed 10/08/20 Page 1 of 26 PageID #: 34
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF KEW GARDEN HILLS, AGUDATH ISRAEL OF MADISON, AGUDATH ISRAEL OF BAYSWATER, RABBI YISROEL REISMAN, RABBI MENACHEM FEIFER, STEVEN SAPHIRSTEIN,
Plaintiffs, Civil Action No._1_:_2_0_-c_v_-_0_4_8_3_4_ vs. ANDREW M. CUOMO, Governor of the State of New York, in his official capacity,
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .......................................................................................................... i INTRODUCTION ......................................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................ 5 I. Defendant’s Selective and Discriminatory Enforcement of COVID-19
Restrictions ........................................................................................................................ 5 II. Defendant’s Executive Order No. 202.68 Infringes Upon Orthodox Worship
Services .............................................................................................................................. 8 III. Plaintiffs’ Houses of Worship Protect from the Transmission of COVID-19................. 11 ARGUMENT ............................................................................................................................... 12 I. The Restrictions on Houses of Worship in the Executive Order Are
Unconstitutional ............................................................................................................... 12 A. The Right to the Free Exercise of Religion Exists Even During COVID-19 ...... 12 B. Defendant’s Restrictions on Worship Are Unconstitutional ............................... 14 II. Plaintiffs Will Suffer Irreparable Harm in the Absence of Injunctive Relief .................. 20 III. The Balance of the Hardships Tips in Plaintiffs’ Favor .................................................. 21 IV. Injunctive Relief Would Serve the Public Interest .......................................................... 21 CONCLUSION............................................................................................................................ 22
i

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TABLE OF AUTHORITIES

CASE

Page(s)

Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887 (2d Cir. 2015).....................................................................................................12

Calvary Chapel Dayton Vall. v. Sisolak, 140 S. Ct. 2603 (2020) .............................................................................................................19

Cent. Rabbinical Congress of the U.S. & Can. v. NYC Dep’t of Health & Mental Hygiene, 763 F.3d 183 (2d Cir. 2014)............................................................................................. passim

Chestnut Hill NY, Inc. v. City of Kingston, 2017 U.S. Dist. LEXIS 226807 (N.D.N.Y. Feb. 22, 2017) .....................................................12

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)......................................................................................................... passim

Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................20, 21

Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110 (2d Cir. 2009).....................................................................................................12

Holt v. Hobbs, 574 U.S. 352 (2015).....................................................................................................14, 18, 19

Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905)...................................................................................................................19

Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).................................................................................................20, 21

LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995).................................................................................................20, 21

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018) .......................................................................................................13, 18

N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013).....................................................................................................22

Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015).....................................................................................................19

ii

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Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) .................................................................................18, 19, 21, 22
Soos v. Cuomo, 2020 U.S. Dist. LEXIS 111808 (N.D.N.Y. June 26, 2020).....................................6, 16, 17, 22
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) .................................................................................................16, 17, 18
Williams v. Annucci, 895 F.3d 180 (2d Cir. 2018).....................................................................................................14
Ward v. Polite, 667 F.2d 727 (6th Cir. 2012) ...................................................................................................18
Wisconsin v. Yoder, 406 U.S. 205 (1972).................................................................................................................12
OTHER AUTHORITIES U.S. CONST. amend. I............................................................................................................... supra U.S. CONST. amend. XIV ...............................................................................................................12 N.Y. Executive Order No. 202.........................................................................................................5 N.Y. Executive Order No. 202.68........................................................................................3, 4, 7, 8 Professor Josh Blackman, New York Governor Cuomo: “I’m Going to Say to the
Orthodox Community Tomorrow If You Don’t Agree Then We Will Have to Close Down Your Religious Institutions, Volokh Conspiracy (Oct. 6, 2020) https://reason.com/2020/10/06/new-york-governor-cuomo-im-going-to-say-to-theorthodox-community-tomorrow-if-you-dont-agree-then-we-will-have-to-close-downyour-religious-institutions/ .........................................................................................................1
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Plaintiffs Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, and Steven Saphirstein (together, “Plaintiffs”) respectfully submit this memorandum of law in support of their Motion for Temporary Restraining Order and Preliminary Injunction. The Motion and this memorandum are supported by the Declarations of Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Avrohom Weinstock, Aharon Weisenfeld, Steven Saphirstein, and Avi Schick, and the Exhibits attached thereto.
INTRODUCTION Granting this request for a temporary restraining order is essential to safeguarding the core religious practices of thousands of Orthodox Jews. Absent entry of a temporary restraining order on or before October 9, 2020, it will be impossible for Plaintiffs and others to fully and properly observe the three Jewish holiday of Hoshana Rabbah, Shmini Atzeres, and Simchas Torah, which are observed on October 9–11, 2020. Two days before these holidays, Defendant banned thousands of Orthodox Jews from fulfilling a core an essential religious tradition that has been observed for more than 2,000 years. In doing so, Defendant singled out this religious minority for public scorn at a press conference. See Professor Josh Blackman, New York Governor Cuomo: “I’m Going to Say to the Orthodox Community Tomorrow If You Don’t Agree Then We Will Have to Close Down Your Religious Institutions,” The Volokh Conspiracy (Oct. 6, 2020) https://reason.com/2020/10/06/new-yorkgovernor-cuomo-im-going-to-say-to-the-orthodox-community-tomorrow-if-you-dont-agree-thenwe-will-have-to-close-down-your-religious-institutions/. Defendant concedes that he has never enforced the already existing restrictions on houses of worship that Plaintiffs have fully complied with. Defendant has never contended that Plaintiffs

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have violated any capacity, distancing, masking, or other safety requirements. There is simply no

justification for the unwarranted, unnecessary and unconstitutional restrictions imposed this week.

*

*

*

Earlier this week, Defendant announced the imposition of restrictions on certain

neighborhoods, including severe limitations on houses of worship. In announcing the restrictions,

Defendant singled out of houses of worship. In particular, he singled out Orthodox Jews.

Defendant singled out “[r]eligious institutions” as “the greatest potential” threat to the spread of

COVID-19, declaring that “[w]e know religious institutions have been a problem.” Declaration

of Avi Schick (“Schick Decl.”) Ex. A at 7. Defendant did so despite recognizing that a “[l]ack of

enforcement” by “[l]ocal governments” of existing restrictions has “contributed to this problem,”

emphasizing that “nobody’s doing the enforcement” of COVID-19 restrictions, including “the bars

and restaurants.” Id. at 8–9.

During his press conference, Defendant highlighted pictures of observant Jews as

purportedly demonstrating “clear violations of social distancing,” wrongly claiming the pictures

were from “the recent past” (in fact, one photo was of a funeral in 2006). Id. at 7; see also Schick

Decl. Ex. B at 10. Stating that he planned to “meet with members of the ultra-Orthodox community

tomorrow,” Defendant threatened that “we’ll close the [religious] institutions down” if “you do

not agree to enforce the rules.” Schick Decl. Ex. A at 8.

The next day, Defendant eschewed the logical step of enforcing the existing restrictions

and instead imposing selective and discriminatory gathering restrictions on houses of worship.

The following chart identifying the restrictions was released during the press conference.

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Schick Decl. Exs. C at 2, D at 1. As the chart indicates, Defendant’s restrictions impose discriminatory limitations on houses of worship depending on their geographic location. Id. Late that night, Defendant issued Executive Order No. 202.68, implementing these restrictions and ordering that the restrictions “shall be effective immediately” and “shall be enforced no later than Friday, October 9, 2020[.]” Schick Decl. Ex. E at 2.
Defendant’s restrictions violate Plaintiffs’ constitutional right of the free exercise of religion, guaranteed by the First Amendment of the United States Constitution, for two independent reasons. First, Defendant’s restrictions are facially discriminatory toward religious practice as compared to secular activities. In areas that are in the Yellow Zone, Defendant’s restrictions limit houses of worship to 50% of their legal capacity while allowing similar secular activities to operate at greater capacities. In areas that are in the Orange Zone, Defendant restricts houses of worship to a 25-person maximum while permitting a range of similar secular activities to operate under less restrictive capacity limitations. In areas that are in the Red Zone, Defendant
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limits houses of worship to a 10-people maximum while allowing “essential gatherings” and businesses to operate under more favorable restrictions. In each of these zones, Defendant’s restrictions are specifically directed at religious practice and thus are not neutral.
Second, Defendant’s explicit targeting of religious institutions for restrictions demonstrates that his order infringes upon Plaintiffs’ religious practices because of their religious nature. Although Defendant recognized other activity may present similar or greater risks than houses of worship, Defendant admitted that the limitations single out religious practice for special treatment that the “rules are most impactful on houses of worship” because “[t]he problem is mass gatherings and houses of worship.” Schick Decl. Ex. F at 8. Defendant threatened “religious institutions” and “members of the ultra-Orthodox community” that “[i]f you do not agree to enforce the rules, then we’ll close the [religious] institutions down.” Schick Decl. Ex. A at 8. Defendant’s contemporaneous statements made while announcing his restrictions demonstrate that he impermissibly has singled out religious practice because of its religious nature.
Houses of worship are a critical component of the religious life of Jews. Defendant’s Executive Order No. 202.68 renders it impossible for Plaintiff synagogues and individuals and all of their congregants to fulfill their religious obligations. Many of the Plaintiff’ synagogues are located in the “red zone” of the restrictions, which limits worship services to 10 individuals, Declaration of Rabbi Yisroel Reisman (“Reisman Decl.”) ¶ 6; Declaration of Steven Saphirstein (“Saphirstein Decl.”) ¶ 6, or the “orange zone,” which limited worship services to 25 individuals, Declaration of Rabbi Menachem Feifer (“Feifer Decl.”) ¶ 5. Under these restrictions, “it is impossible to conduct services for all of [Plaintiffs’] congregants” for the Jewish holidays observed on October 9–11, 2020, known as Hoshana Rabbah, Shmini Atzeres, and Simchas Torah, respectively. Reisman Decl. ¶ 13; Feifer Decl. ¶ 12; Saphirstein Decl. ¶ 13.
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If this Court does not grant immediate relief barring Defendant’s restrictions, Plaintiffs will suffer irreparable harm because they will be prohibited from attending synagogue to practice their religious beliefs, which would be “particularly devastating” during the upcoming Jewish holiday period. Reisman Decl. ¶ 10; Feifer Decl. ¶ 9; Saphirstein Decl. ¶ 10. The irreparable injury caused by Defendant’s restrictions will fall particularly harshly on Orthodox Jews, who do not use vehicular travel on Sabbath or religious holidays and thus are unable to travel to houses of worship unaffected by the Executive Order. Reisman Decl. ¶¶ 16–17; Feifer Decl. ¶¶ 15–16; Saphirstein Decl. ¶¶ 16–17. The public interest favors safeguarding Plaintiffs’ constitutional rights.
STATEMENT OF FACTS I. Defendant’s Selective and Discriminatory Enforcement of COVID-19 Restrictions
To combat the “transmission of COVID-19” and the “threat that COVID-19 poses to the health and welfare” of the State of New York, Defendant issued Executive Order No. 202 on March 7, 2020 declaring a disaster emergency in New York. Schick Decl. Ex. G at 1–3. In the following months, Defendant issued dozens of orders imposing business closures, in-person gathering restrictions, and other requirements throughout the State.
In May, the State announced that it would allow a phased, regional approach for nonessential businesses to reopen and other conduct to resume, based on regions satisfying certain health-related metrics specified by the New York Department of Health. See generally Schick Decl. Ex. H. Pursuant to that plan, Defendant has exempted non-essential businesses and other conduct from his gathering and closure restrictions in certain regions of the State, provided that such entities operate subject to Department of Health guidance. Id. Among other things, the Department of Health Guidance requires such businesses and other conduct to adhere to certain
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health and safety protocols, which often include capacity limitations on maximum occupancy. Id. All regions of the State currently are in the final phase (Phase 4) of that plan. Id.
For religious services in Phase 4, the State’s guidelines impose a restriction of “no more than 33% of the maximum occupancy for a particular area as set by the certification of occupancy for services occurring indoor; or no more than 50 people for services occurring outdoors.” Schick Decl. Ex. I at 2, 4. In Soos v. Cuomo, 2020 U.S. Dist. LEXIS 111808 (N.D.N.Y. June 26, 2020), the district court enjoined Defendant’s earlier 25% indoor capacity limitation on houses of worship, concluding that they imposed more restrictive capacity limitations to comparable secular activity that allowed 50% capacity, such as “offices, retail stores that are not inside of shopping malls, and salons,” as well as restaurants, and restrained Defendant from enforcing such limitations greater than those imposed for comparable activity. Id. at *29–30, 35.
Two days ago, Defendant instituted new gathering restrictions designed to target religious institutions. During a press conference on October 5, 2020, Defendant singled out “[r]eligious institutions” as “the greatest potential” threat, declaring that “[w]e know religious institutions have been a problem.” Id. Defendant showed pictures of religious gatherings while making these statements, wrongly stating the pictures were from “the recent past.” Id.; Ex. B at 5. Stating that he planned to “meet with members of the ultra-Orthodox community tomorrow,” Defendant threatened that “we’ll close the [religious] institutions down” if “you do not agree to enforce the rules.” Schick Decl. Ex. A at 8.
The following day, Defendant again stated that “a COVID cluster problem” is “see[n] [ ] in places of worship.” Schick Decl. Ex. F at 3. Defendant declared that he intended his restrictions to be “most impactful on houses of worship” because “[t]he problem is mass gatherings and houses of worship.” Id. at 8. Defendant did so despite recognizing that “a lack of enforcement” by “[l]ocal
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governments” has “contributed to this problem,” id. at 7–8, emphasizing that “nobody’s doing the enforcement” of COVID-19 restrictions, including “the bars and restaurants,” Schick Decl. Ex. A at 8–9.
Defendant declared that the restrictions “will be in effect for a minimum of 14 days.” Schick Decl. Ex. F at 1, and that “[t]he state is going to take over the enforcement oversight in all the hotspot clusters.” Schick Decl. Ex. A at 9.
At approximately midnight on October 6, Defendant issued Executive Order No. 202.68 implementing the restrictions. Schick Decl. Ex. E at 1–2. In particular, in areas that are in the “Red Zone – Cluster Itself,” Defendant restricts houses of worship to a 10-person maximum limit. Id. at 2. The order imposes restrictions on “[n]on-essential gatherings of any size,” but does not define or otherwise restrict “essential” gatherings. Id. The order likewise exempts essential businesses from the restrictions. Id.
In areas that are in the “Orange Zone – Warning Zone,” Defendant restricts houses of worship to a 25-person maximum limit. Id. Defendant exempts most businesses in this zone from any new restrictions, “[c]losing” only “non-essential businesses, for which there is a higher risk associated with the transmission of the COVID-19 virus[.]” Id.
In areas Defendant determines are in the “Yellow Zone – Precautionary Zone,” Defendant restricts houses of worship to 50% capacity. Schick Decl. Ex. E at 2. Defendant exempts all businesses, including restaurants for indoor and outdoor dining service, from these “Yellow Zone” restrictions. Id.
Defendant’s order provides that the “directive shall be effective immediately” and “shall be enforced no later than Friday, October 9, 2020.” Id. The order likewise states that “any individual who encourages, promotes or organizes a non-essential gathering as set forth in
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Department of Health regulation, shall be liable for a civil penalty not to exceed $15,000 per day[.]” Id. at 1. The restrictions currently apply to areas in the following counties: Broome, Brooklyn, Orange, Queens, and Rockland. Schick Decl. Ex. J at 8–13. II. Defendant’s Executive Order No. 202.68 Infringes Upon Orthodox Worship Services
Jewish houses of worship are a necessary and essential component of Orthodox Jewish life. Orthodox Jews pray in synagogues every day. Reisman Decl. ¶ 2; Feifer Decl. ¶ 2; Saphirstein Decl. ¶ 2. Services conducted on Saturdays and Jewish holidays are particularly important. Id. In the aggregate, Plaintiffs’ synagogues serve tens of thousands of Orthodox Jews. See Declaration of Aharon Weisenfeld (“Weisenfeld Decl.”). Many if not most of the individual synagogues serve several hundred men and woman each week, and have legal capacities that permit them to have several hundred worshippers in the building at any one time. Reisman Decl. ¶ 2; Feifer Decl. ¶ 2; Saphirstein Decl. ¶ 2.
Defendant’s Executive Order No. 202.68 renders it “impossible” for Plaintiffs’ synagogues and their congregants to fulfill their religious obligations. Reisman Decl. ¶ 5; Feifer Decl. ¶ 4; Saphirstein Decl. ¶ 5. For synagogues in the “red zone,” such as Plaintiff Agudath Israel of Madison and Agudath Israel of Kew Gardens Hills, the Executive Order would limit attendance at worship services to 10 individuals. Reisman Decl. ¶ 6; Saphirstein Decl. ¶ 6. For synagogues in the “orange zone,” such as Plaintiff Agudath Israel of Bayswater, the Executive Order would limit attendance at worship services to 25 individuals. Feifer Decl. ¶ 5. Under these restrictions, “it is impossible to conduct services for all of Plaintiffs’ congregants” for the three Jewish holidays observed on October 9–11, 2020. Reisman Decl. ¶ 6; Feifer Decl. ¶ 5; Saphirstein Decl. ¶ 6. These days are known as Hoshana Rabbah, Shmini Atzeres, and Simchas Torah, respectively.
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This Friday, October 9, is the holiday of Hoshana Rabbah, which marks the conclusion of the Days of Judgment that began with Rosh Hashona. Reisman Decl. ¶ 7; Feifer Decl. ¶ 6; Saphirstein Decl. ¶ 7. There are special, additional services and rituals that are required of Jewish Practitioners that day. Id. In particular, there are seven additional prayers followed by the traditional beating of a willow branch in the synagogue. Id. This tradition dates back two thousand years, to the times of the Temple. Id. Services also require reading from a Torah scroll. Id. These services take at least ninety minutes to one hundred and fifty minutes. Reisman Decl. ¶ 8; Feifer Decl. ¶ 7; Saphirstein Decl. ¶ 8.
Defendant’s restrictions render it impossible for Plaintiffs and other Orthodox Jews to participate in services on Hoshanna Rabba. With services limited to ten attendees, it would require more than twenty separate services, each lasting at least ninety to one hundred twenty minutes, on Friday morning. Id. That is simply not possible. By contrast, under the existing COVID-19 rules, Plaintiffs “could utilize all the various spaces of our synagogue to have four services, using indoor and outdoor space.” Reisman Decl. ¶ 9; Feifer Decl. ¶ 8; Saphirstein Decl. ¶ 9.
This Saturday, October 10, is the holiday of Shmini Atzeres. Services on this day include Yizkor, which is the Prayer for Departed Relatives. Reisman Decl. ¶ 10; Feifer Decl. ¶ 9; Saphirstein Decl. ¶ 10. This prayer is only recited four times a year, and the next recitation is not until Passover, in April. Id. These additional prayers by men and woman alike are particularly emotional, are led by the Rabbi, take an additional fifteen minutes and are only offered only in group (rather than individual) prayer. Id. It would be “particularly devastating” for congregants to be deprived of this prayer on Saturday. Id.
Shmini Atzeres is also the only day of the year when Orthodox synagogues read Ecclesiastes, which Orthodox Jews accept as the Book of Wisdom. Reisman Decl. ¶ 11; Feifer
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Decl. ¶ 10; Saphirstein Decl. ¶ 11. In Plaintiffs’ synagogues, it is read from a parchment and requires a trained cantor. Id. Under Defendant’s order, it is impossible for Plaintiffs and other Orthodox Jews to engage in the Prayer for Departed Relatives and to comply with the Jewish law requirements to read Ecclesiastes in a congregate setting. Id. Under the existing COVID-19 rules, however, Plaintiffs would be permitted to engage in such conduct. Id.
This Sunday, October 11 is Simchas Torah, which has a literal translation of Joy of the Torah. Reisman Decl. ¶ 12; Feifer Decl. ¶ 11; Saphirstein Decl. ¶ 12. In celebration of the completion of the annual cycle of Torah readings, each congregant is called to the Torah for a short reading. Id. The Rabbi is then traditionally called to read the final portion of the Torah, after which the first portion of the Torah is read. Id. These Torah readings, in addition to the regular services, take time. Id. It is impossible for Plaintiffs to conduct services for all of their congregants on Simchas Torah if they are limited to ten worshippers, as there “simply is not enough time to do even the Torah readings required of the day, let alone the services.” Reisman Decl. ¶ 13; Feifer Decl. ¶ 12; Saphirstein Decl. ¶ 13. Yet Plaintiffs “would be able to comply with both our religious and civil dictates if the existing [COVID-19] capacity restrictions remain in place through this holiday period.” Reisman Decl. ¶ 14; Feifer Decl. ¶ 13; Saphirstein Decl. ¶ 14.
Because Orthodox Jews are prohibited from vehicular travel on Saturdays and religious holidays, Defendant’s restrictions also disproportionately impact Jewish Orthodox services. Synagogues are tightly clustered around where practitioners reside. Reisman Decl. ¶ 16; Feifer Decl. ¶ 156; Saphirstein Decl. ¶ 16; Weisenfeld Decl. ¶ 5. While Orthodox Jews can continue to drive to work or engage in other permitted activity outside of prohibited zones, the restrictions bar Orthodox Jews principally from attending religious services, as they are unable to travel to synagogues outside of their restricted zones. Reisman Decl. ¶ 17; Feifer Decl. ¶ 16; Saphirstein
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Decl. ¶ 17; Weisenfeld Decl. ¶ 5. While practitioners of other faiths retain the option to drive to nearby houses of worship outside of their restricted zones, Orthodox Jews are unable to do so. Reisman Decl. ¶ 17; Feifer Decl. ¶ 16; Saphirstein Decl. ¶ 17.
Additionally, there are hundreds of synagogues in the areas affected by Defendant’s restrictions, Weisenfeld Decl. ¶¶ 2–3, 6, and tens of thousands of Orthodox Jews in New York live within the areas affected by Defendant’s restrictions, id. at ¶ 4. Thus, the brunt of the religious burden that Defendant’s executive order imposes is on Orthodox Jewish worshippers, who are totally deprived of the ability to participate in religious services. Reisman Decl. ¶¶ 16–18; Feifer Decl. ¶¶ 15–17; Saphirstein Decl. ¶¶ 16–18. III. Plaintiffs’ Houses of Worship Protect from the Transmission of COVID-19
Plaintiffs’ houses of worship have adopted health protocols and have altered religious congregation to safeguard against the spread of COVID-19. Plaintiffs’ synagogues have been fully compliant with all mandates issued by the State and New York City since the onset of the pandemic. Reisman Decl. ¶ 3; Feifer Decl. ¶ 3; Saphirstein Decl. ¶ 3. Among other things, Plaintiffs have split the traditional congregational service into several separate gatherings, which accommodates every congregant while still ensuring that congregants maintain proper social distancing. Id. Plaintiffs require congregants to wear masks during the entirety of their religious services, and congregants have fully complied with the mask policy. Id.
By implementing rigorous health and safety protocols, Plaintiffs have been able to allow their members to continue to practice their religious beliefs while still safeguarding from the spread of COVID-19. Since Defendant has conceded that there has been no enforcement against those who have failed to comply with the existing rules, he should have demanded enforcement of those rules rather than imposing punitive and discriminatory new rules in the Executive Order.
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ARGUMENT In the Second Circuit, the standard for issuance of a temporary restraining order and a preliminary injunction are the same. Chestnut Hill NY, Inc. v. City of Kingston, 2017 U.S. Dist. LEXIS 226807, at *2 (N.D.N.Y. Feb. 22, 2017). When pursuing injunctive relief against regulation taken in the public interest, a plaintiff must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable injury in the absence of an injunction; (3) that the balance of the hardships tips in the plaintiff’s favor; and (4) that the public interest would not be disserved by the issuance of an injunction. Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015) (citation omitted). “A showing of irreparable harm is ‘the single most important prerequisite for the issuance of a preliminary injunction.’” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)). I. The Restrictions on Houses of Worship in the Executive Order Are Unconstitutional Plaintiffs are likely to prevail on their claim that Defendant’s restrictions on gathering in houses of worship violate Plaintiffs’ First Amendment right to the free exercise of religion for two independent reasons. First, Defendant’s restrictions impermissibly discriminate against religious practice while simultaneously permitting comparable secular conduct. Second, Defendant’s restrictions similarly violate Plaintiffs’ Free Exercise rights because they inappropriately target conduct because of their religious motivation. A. The Right to the Free Exercise of Religion Exists Even During COVID-19 The First Amendment to the United States Constitution, through the Fourteenth Amendment, forbids States from enacting laws providing for the establishment of religion or prohibiting the free exercise of religion. See Wisconsin v. Yoder, 406 U.S. 205, 214 (1972).
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Laws burdening the free exercise of religion that are not neutral or generally applicable are subject to “the most rigorous of scrutiny.” Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993). A law can lack neutrality toward religion in two independent ways, both applicable here.
First, a law is “not neutral” where “the religious ritual it regulates is ‘the only conduct subject to’ the” restriction by that restriction’s text. Cent. Rabbinical Congress of the U.S. & Can. v. NYC Dep’t of Health & Mental Hygiene, 763 F.3d 183, 195 (2d Cir. 2014) (quoting Lukumi, 508 U.S. at 535). That is, a law is not neutral “if it is ‘specifically directed at [a] religious practice.’” Id. at 193 (quoting Employment Div., Dep’t of Human Res. of Ore. v. Smith, 494 U.S. 872, 878 (1990)).
Second, a law that restricts practice because of its religious motivation similarly is not neutral towards religion, even if its text appears neutral. To determine whether a law is facially discriminatory toward religious practice, a court should analyze “objective factors [that] bear on the question of discriminatory object,” such as “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.” Lukumi, 508 U.S. at 540 (emphasis added and citation omitted).
A State “cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs or practices.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018), because “[t]he Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion.” Id. (quoting Lukumi, 508 U.S. at 534). Religious individuals and institutions are “entitled to a neutral decisionmaker who would give full and fair
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consideration” to religious beliefs; thus, disparate consideration of religious practice compared to secular practice fails to act in a manner neutral toward religion. Id. at 1729, 1732.
To satisfy the “‘exceptionally demanding’” strict scrutiny test applicable to laws that are not neutral toward religion, either by their text or motivation, Holt v. Hobbs, 574 U.S. 352, 364 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014)), the State must show that the law “advance[s] ‘interests of the highest order’ and [is] narrowly tailored in pursuit of those interests,” Lukumi, 508 U.S. at 546 (quoting McDaniel v. Paty, 435 U.S. 618, 628 (1978)). Laws “will survive strict scrutiny only in rare cases.” Id.
A law fails to advance a compelling interest where government “fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort” as the restricted religious activity. Id. at 546–47. A law is not narrowly tailored if “‘less restrictive means [are] available for the Government to achieve its goals[.]’” Holt, 574 U.S. at 365 (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000)). A law’s “underinclusiveness suggests . . . that a more tailored policy, less burdensome to [religious practice], is possible.” Williams v. Annucci, 895 F.3d 180, 193 (2d Cir. 2018); see also Holt, 574 U.S. at 367–38; Lukumi, 508 U.S. at 546.
B. The Executive Order’s Restrictions on Worship Are Unconstitutional 1. By imposing gathering restrictions on houses of worship, Defendant has burdened Plaintiffs’ sincerely held religious beliefs. Plaintiffs are sincere practitioners of Judaism who believe that attending religious services at the synagogue provides a critical facet to the religious practices and beliefs of Jewish individuals. As discussed above, see supra 8–11, Defendant’s restrictions render it “practically impossible” for Plaintiffs “to conduct services for all of [their] congregants” for the Jewish holidays observed on October 9–11, 2020, thereby infringing upon
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Plaintiffs’ ability to “comply with” religious dictates. Reisman Decl. ¶ 6; Feifer Decl. ¶ 5; Saphirstein Decl. ¶ 6. Because Defendant has restricted the number of individuals that may gather at houses of worship, rendering such conduct illegal and subject to penalty, Defendant has deprived Plaintiffs of their ability to act in accordance with their sincerely held religious beliefs.
2.a. Defendant’s restrictions are not neutral because they are facially discriminatory. Defendant’s restrictions in each zone expressly impose gathering restrictions on “houses of worship” and not other secular conduct. Schick Decl. Ex. E at 2.
In areas designated to be in the “Yellow Zone,” Defendant restricts houses of worship to 50% capacity while permitting all businesses, including restaurants for indoor and outdoor dining service, and schools, to remain open. Id. These restrictions thus facially target religious practice because they are “specifically directed at [a] religious practice.” Cent. Rabbinical, 763 F.3d at 193, 195. Defendant’s order allows schools, including higher education, to remain open at full capacity in these regions. See generally Schick Decl. Ex. K. This secular conduct that Defendant’s order permits to open at greater capacity than 50% similarly constitute gatherings of individuals for a prolonged period of time—the very characteristics of public congregation used to justify restrictions to combat the transmission of COVID-19.
In areas designated to be in the “Orange Zone,” Defendant restricts worship services to a maximum of 25 people while “[c]losing” only “non-essential businesses, for which there is a higher risk associated with the transmission of the COVID-19 virus[.]” Schick Decl. Ex. E at 2. The capacity restrictions on houses of worship in this zone likewise facially target religious practice. The “non-essential” businesses that Defendant’s order permits to open at greater capacity than houses of worship include offices, malls, and retail stores, which Defendant allows to open at 50% capacity. See generally Schick Decl. Exs. L, M. These favored secular activities similarly
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constitute gatherings of individuals for a prolonged period of time that should trigger the same concerns relating to the spread of COVID-19 that Defendant claims justifies restrictions on houses of worship. Yet Defendant’s restrictions on houses of worship in this zone facially target religious practice, and not such secular conduct.
Indeed, in enjoining Defendant’s 25% capacity restriction on houses of worship this summer, Judge Sharpe in Soos concluded that exempted secular activity such as offices “threaten defendants’ interest in slowing the spread of COVID-19 to a similar or greater degree than” houses of worship. 2020 U.S. Dist. LEXIS 111808, at *29–30. The reasoning in Soos applies here. Thus, by implementing gathering restrictions only on religious practice, Defendant’s order is “not neutral” because “the religious ritual it regulates is ‘the only conduct subject to’ the” restriction. Cent. Rabbinical, 763 F.3d at 193, 195 (quoting Lukumi, 508 U.S. at 535).
In areas designated to be in the “Red Zone – Cluster Itself,” Defendant restricts houses of worship to a 10-person maximum. Schick Decl. Ex. E at 2. These restrictions similarly facially target religious practice. Cent. Rabbinical, 763 F.3d at 193, 195. Moreover, while Defendant’s order exempts all essential gatherings and businesses from such restrictions, Schick Decl. Ex. E at 2, it fails to define “essential” gatherings not subject to the gathering restrictions.
The denial of application for emergency injunctive relief in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), does not direct a different result. At issue in South Bay was a challenge to state law limiting capacity on houses of worship while exempting other secular conduct from those restrictions. Id. at 1613. Chief Justice Roberts reasoned that the permitted conduct at issue was “dissimilar” to houses of worship, where “large groups of people gather in close proximity for extended periods of time,” because individuals in those secular activities, such as “grocery stores, banks, and laundromats” do not “congregate in large groups nor
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remain in close proximity for extended periods.” Id. (Roberts, C.J., concurring in the denial of application for injunctive relief). In contrast, the permitted secular conduct at issue here does involve “large groups of people [who] gather in close proximity for extended periods of time.” Id. Judge Sharpe similarly held that offices “threaten defendants’ interest in slowing the spread of COVID-19 to a similar or greater degree than those of” houses of worship, and South Bay did not apply. Soos, 2020 U.S. Dist. LEXIS 111808, at *29–30. And neither Soos nor South Bay considered permitted secular conduct relating to schools and higher education, which plainly involve congregations of large groups of individual in close proximity with one another for extended periods of time.
b. Defendant’s Executive Order is also not neutral because it infringes on the religious practices of the Orthodox Jewish community because of their religious motivation. The day before issuing his restrictions, Defendant singled out houses of worship for discriminatory treatment: “Religious institutions are mass gatherings and raise the greatest potential” for the spread of COVID-19, stating that “[w]e know religious institutions have been a problem.” Schick Decl. Ex. A at 7. Defendant threatened “religious institutions” and “members of the ultra-Orthodox community” that “[i]f you do not agree to enforce the rules, then we’ll close the [religious] institutions down.” Id. at 8 (emphasis added).
Defendant’s “contemporaneous statements” made when issuing his restrictions on houses of worship demonstrate the “discriminatory object” of the restrictions as singling out religious practice, Orthodox Jewish practice in particular, “because of their religious motivation.” Lukumi, 508 U.S. at 533, 540 (citation omitted). Indeed, Defendant’s order requires enforcement of his restrictions beginning October 9—the beginning of the Jewish holidays, Reisman Decl. ¶ 7; Feifer Decl. ¶ 6; Saphirstein Decl. ¶ 7, that ensures it will be “impossible” for Plaintiffs and other
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Orthodox Jews to conduct and participate in services. Reisman Decl. ¶ 5; Feifer Decl. ¶ 4; Saphirstein Decl. ¶ 5. And the brunt of Defendant’s restrictions fall disparately on Orthodox Jews, who do not use vehicular travel on Sabbath or on religious holidays and thus are unable to travel to houses of worship for religious practice in permitted areas. Reisman Decl. ¶ 16; Feifer Decl. ¶ 15; Saphirstein Decl. ¶ 16. Defendant’s conduct demonstrates that he failed to act as a “neutral decisionmaker” to religious practice and did not act in a manner neutral to religion. Masterpiece Cakeshop, 138 S. Ct. at 1729, 1732.
3. Defendant cannot satisfy the “‘exceptionally demanding’” strict scrutiny test, Holt, 574 U.S. at 364 (quoting Hobby Lobby, 573 U.S. at 728). Although the State has an undisputed interest in stemming the transmission of COVID-19, the gathering restrictions targeted at houses of worship are not narrowly tailored. “‘[L]ess restrictive means’” clearly are available for the State to diminish the transmission of COVID-19. Holt, 574 U.S. at 365 (quoting Playboy, 529 U.S. at 815). The regulation is massively “underinclusive in relation to its asserted secular goals[.]” Cent. Rabbinical, 763 F.3d at 186. The exempted secular activity, for all businesses, restaurants, and schools in areas in the Yellow Zone and for most businesses in areas in the Orange Zone, in which individuals congregate and remain in close proximity for long periods, endangers the health and welfare of the public through the transmission of COVID-19 “in a similar or greater degree than” do houses of worship, Lukumi, 508 U.S. at 543. That plainly proves the regulation’s “underinclusive” nature. Id. at 542–43; see also S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring in the denial of application for injunctive relief); Roberts v. Neace, 958 F.3d 409, 413– 15 (6th Cir. 2020); Ward v. Polite, 667 F.2d 727, 738–39 (6th Cir. 2012). Such underinclusiveness demonstrates that the State’s interest could be furthered by similarly permitting houses of worship that implement health protocols comparable to those required of comparable secular activity. See
18

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Roberts, 958 F.3d at 415; Holt, 574 U.S. at 367–68; Lukumi, 508 U.S. at 546. Defendant’s restrictions on houses of worship thus fails strict scrutiny.
4. Even if strict scrutiny did not apply, Defendant’s restrictions on houses of worship still fails. The Supreme Court’s holding in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), that a regulation to “protect the public health and the public safety” is unconstitutional only if it is “arbitrary and oppressive” or “has no real or substantial relation to [protect public health], or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law,” id. at 25, 31, 38 (citations omitted), does not alter traditional Free Exercise Clause scrutiny. See Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015); see also Roberts, 958 F.3d at 413–15. “Language in Jacobson must be read in context, and it is important to keep in mind that Jacobson primarily involved a substantive due process challenge[,]” and “[i]t is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment[.]” Calvary Chapel Dayton Vall. v. Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., dissenting from denial of application for injunctive relief).
Even if Jacobson did apply to Plaintiffs’ Free Exercise Clause claim, Defendant’s discriminatory conduct would not survive review. As discussed above, the restrictions impose limits on houses of worship while simultaneously allowing gatherings of more individuals for comparable secular activity and businesses. Defendant’s restrictions singling out religious conduct for restriction on gathering is “arbitrary and oppressive” and an “palpable invasion of rights secured by fundamental law.” Jacobson, 197 U.S. at 31, 38. This is especially so because Defendant never bothered to enforce the existing restrictions before issuing these punitive new
19

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restrictions. This demonstrates that the Executive Order was driven by pique toward religion and not concern for public health. II. Plaintiffs Will Suffer Irreparable Harm in the Absence of Injunctive Relief
Defendant’s restrictions violate Plaintiffs’ constitutional rights and will cause irreparable harm. Courts presume irreparable harm where there exists a threatened violation of constitutional rights. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.); see also LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 426 (2d Cir. 1995).
Closure of houses of worship would require Plaintiffs to sacrifice religious practice. Plaintiffs are sincere practitioners of Judaism who wish to worship in synagogue. But the limits proscribed by Defendant’s restrictions makes such worship impossible. Reisman Decl. ¶ 5; Feifer Decl. ¶ 4; Saphirstein Decl. ¶ 5.
The irreparable injury Plaintiffs will suffer is particularly grave during the upcoming Jewish holidays from October 9–11, as Defendant’s restrictions make it “impossible” for Plaintiffs to engage in critical religious practices. Reisman Decl. ¶¶ 5–6; Feifer Decl. ¶¶ 4–5; Saphirstein Decl. ¶¶ 5–6. It would be “particularly devastating” for congregants to be deprived of engaging in communal prayer and rituals during the holiday services. Reisman Decl. ¶ 10; Feifer Decl. ¶ 9; Saphirstein Decl. ¶ 10. If relief is granted, Plaintiffs “would be able to comply with both our religious and civil dictates if the existing capacity restrictions remain in place through this holiday period.” Reisman Decl. ¶ 14; Feifer Decl. ¶ 13; Saphirstein Decl. ¶ 14. Plaintiffs are fearful of prosecution for holding such services, given that Defendant has threatened to impose fines of up to $15,000 upon “any individual who encourages, promotes or organizes a” worship service
20

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attended by more than the limited number of individuals set forth in the Executive Order. Schick Decl. Ex. E at 1.
Defendant’s restrictions deprive Plaintiffs of their constitutional rights to exercise their religious beliefs by attending worship services. Plaintiffs would suffer irreparable harm in the absence of an injunction, Elrod, 427 U.S. at 473; Jolly, 76 F.3d at 482; LeBlanc-Sternberg, 67 F.3d at 426, and a subsequent award of damages cannot undo or compensate for that harm. III. The Balance of the Hardships Tips in Plaintiffs’ Favor
The balance of the hardships also favors granting the requested injunction. As demonstrated above, Plaintiffs will suffer irreparable harm in the absence of injunctive relief.
By contrast, Defendant will suffer no meaningful harm if the Court issues the injunction. Plaintiffs have guarded against the spread of COVID-19 and have been fully compliant with all State and local mandates since the onset of the pandemic. Reisman Decl. ¶ 3; Feifer Decl. ¶ 3; Saphirstein Decl. ¶ 3. Plaintiffs have implemented health and safety protocols that include, among other things, requiring congregants to wear masks during services and splitting services into small gatherings to ensure proper social distancing. Id. By adhering to these rigorous health and safety protocols, Plaintiffs have ensured no outbreak of COVID-19 has occurred among their congregants. Id. Plaintiffs simply seek injunctive relief that “appropriately permits religious services with the same risk-minimizing precautions as similar activities.” Roberts, 958 F.3d at 416. The balance of the equities thus plainly favors Plaintiffs. During any injunction period, Defendant can enforce the existing restrictions that he concedes he has never bothered to enforce. IV. Injunctive Relief Would Serve the Public Interest
Injunctive relief would benefit the public interest in protecting Plaintiffs’ constitutional rights and in treating religious and secular conduct in comparable ways. “[S]ecuring First
21

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 Case 1:20-cv-04834-KAM-RML Document 6 Filed 10/08/20 Page 1 of 3 PageID #: 302

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORI(

AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF KEW GARDEN HILLS, AGUDATH ISRAEL OF MADISON, AGUDATH ISRAEL OF BAYSWATER, RABBI YISROEL REISMAN, RABBI MENACHEM FEIFER, STEVEN SAPHIRSTEIN,

Plaintiffs,
vs.
ANDREWM. CUOMO, Governor of the State of New York, in his official capacity,

Civil Action No. 1:20-cv-04834
(Mvi,)

Defendant.

ORDER TO SHOW CAUSE
K.tj tJ f1tttu�ted States District Judge:
THIS MATTER coming before the Court on the Motion of Plaintiffs for a Temporary Restraining Order and a Prelimina1y Injunction and Order to Show Cause why a Temporary Restraining Order should not issue; and
THE COURT NOTING that Plaintiffs, which include synagogues, Rabbis and Orthodox Jews who wish to hold in-person religious services at Jewish houses of worship in conformity with the existing COVID-19 capacity limitations that are in excess of the capacity limitations proscribed by New York Executive Order No. 202.68, allege that Defendant, the Governor of the State of New York, is violating their constitutional rights by enforcing Executive Order No. 202.68 as it relates to houses of worship.. Plaintiffs specifically allege that Defendant's gathering restrictions set forth in New York Executive Order No. 202.68 on Plaintiffs' houses of worship violate their free exercise of religion rights guaranteed by the First Amendment of the United States Constitution;

Case 1:20-cv-04834-KAM-RML Document 6 Filed 10/08/20 Page 2 of 3 PageID #: 303

THE COURT NOTING that Plaintiffs have requested that Defendant, and all those acting in concert with him, be temporarily restrained and preliminaiy and permanently enjoined from enforcing Executive Order No. 202.68 to restrict the gathering in Plaintiffs' houses of worship;
THE COURT NOTING that Plaintiffs seek this relief to be effective on or before October 9, 2020, which is the date on which the first of three successive Jewish holidays begin;
THE COURT FINDING that Plaintiffs have provided good and sufficient reasons why the Comt should employ an expedited procedure under Local Rule 6.1(d) given the immediacy of Plaintiffs' application.
IT IS HEREBY ORDERED that Plaintiffs' applioation is gra:ntcd :rneh that the Comt will employ an expedited procedure to hear this matter.
IT IS FURTHER ORDERED THAT: 1. Defendant show cause why a temporary restraining order and preliminary injunction
should not be issued under Federal Rule of Civil Procedure 65 granting Plaintiffs the following relief:
Restraining Defendant, and all those acting in concert with him, from enforcing Executive Order No. 202.68 to further restrict in-person gatherings at houses of worship beyond the existing COVID-19 occupancy restrictions. 2. Defendant must submit a brief on this issue of no more than 25 pages on or before

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Case 1:20-cv-04834-KAM-RML Document 6 Filed 10/08/20 Page 3 of 3 PageID #: 304

videoconference. The Comi shall provide the necessary link to counsel via email prior

to hearing.

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 Case 1:20-cv-04834-KAM-RML Document 11 Filed 10/09/20 Page 1 of 27 PageID #: 336

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF KEW GARDEN HILLS, AGUDATH ISRAEL OF MADISON, AGUDATH ISRAEL OF BAYSWATER, RABBI YISROEL REISMAN, RABBI MENACHEM FEIFER, STEVEN SAPHIRSTEIN,
Plaintiffs,
-against-
Andrew M. Cuomo, Governor of the State of New York in his official capacity,
Defendant.

No. 20-cv-04834

GOVERNOR ANDREW M. CUOMO’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
LETITIA JAMES Attorney General of the State of New York Attorney for Defendant Andrew M. Cuomo 28 Liberty Street New York, New York 10005
TODD A. SPIEGELMAN ERIN R. MCALISTER MARYAM JAZINI-DORCHEH Assistant Attorneys General
of Counsel

Case 1:20-cv-04834-KAM-RML Document 11 Filed 10/09/20 Page 2 of 27 PageID #: 337

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1
FACTUAL BACKGROUND ......................................................................................................... 2
A. The COVID-19 Pandemic And The State’s Early Response................................................. 3
B. New York’s Phased Reopening ............................................................................................. 4
C. The Pandemic Is Not Over..................................................................................................... 5
THE PRESENT LAWSUIT AND MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ............................................................................ 8
STANDARD OF REVIEW ............................................................................................................ 9
ARGUMENT ................................................................................................................................ 10
I. PLAINTIFF CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS .................................................................................................................................. 10
A. The Executive Order Should Be Upheld Under The Jacobson Standard ...................... 10
B. The Executive Order Does Not Violate The First Amendment..................................... 14
1. The Executive Order Is Facially Neutral And Does Not Prevent Plaintiffs’ Free Exercise Of Religion................................................................................................ 14
2. The Executive Order Does Not Discriminate Against Religious Practice Because It Does Not Permit “Comparable” Secular Conduct ................................. 16
3. The Executive Order Does Not Target Conduct Because Of Its Religious Motivation, Nor Does It Target The Orthodox Jewish Community ........................ 19
4. Even If Strict Scrutiny Applies – Which It Does Not – Plaintiffs’ Claims Would Still Fail........................................................................................................ 20
II. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH IN FAVOR OF NEW YORK’S MISSION TO PROTECT ITS CITIZENS FROM A GLOBAL PANDEMIC .......................................................................................................... 22
III. PLAINTIFF HAS NOT SHOWN A LIKELIHOOD OF IRREPARABLE HARM .............. 24
CONCLUSION............................................................................................................................. 25

i

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Defendant Andrew M. Cuomo, sued in his official capacity as Governor of the State of New York (“Governor Cuomo” or “Governor”), respectfully submits this memorandum of law, together with the accompanying Declaration of Howard Zucker (“Zucker Decl.”)1 in opposition to Plaintiffs’ motion for a temporary restraining order and preliminary injunction, ECF No. 2.
PRELIMINARY STATEMENT The State of New York, along with the rest of the world, continues to confront the greatest public health crisis in living memory. The COVID-19 pandemic has caused over 16,000 deaths in New York City alone—an enormous number that could have been far higher had the State not taken urgent action to halt the spread of the virus by mandating temporary restrictions on businesses and social gatherings. Thanks to these measures, New York was able to flatten the curve for new infections and fatalities and is now working toward lifting restrictions in a measured way, balancing the lives, health, and safety of its citizens with the need to protect their livelihoods. But the danger of a resurgence in cases remains clear and present, and certain areas of the State are already seeing such a resurgence. As a result, Governor Cuomo issued Executive Order 202.68 (“EO 202.68”) in order to target and restrict gatherings in these hot spots and to stop any spikes in cases before they increase exponentially, as happened earlier in the year. By this lawsuit, Plaintiffs would unfortunately hamper these efforts by enjoining Governor Cuomo’s Executive Order designed to quash the developing case spikes in these COVID-19 hots spots. Plaintiffs, an Orthodox Jewish organization, synagogues and rabbis, seek a temporary restraining order and preliminary injunction against EO 202.68. They urge the Court to overlook the rising COVID-19 cases so to ensure they can have large gatherings over the upcoming Jewish holidays, even while COVID-19 cases are increasing significantly in their
1 In the revised brief, the name of the declarant has changed from Dr. Elizabeth M. Dufort to Howard A. Zucker, the Commissioner of the Department of Health, and paragraphs cites to the Zucker Declaration were corrected.
1

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neighborhoods and despite the risks posed by potential super-spreading events. Plaintiffs’ motion is fatally flawed because it cannot meet any of the elements required to obtain preliminary relief.
First, there is no clear or substantial likelihood of success on the merits. See Point I, infra. Plaintiffs’ case fails because the Executive Order is rationally related to the government’s critical interest in avoiding spikes in COVID-19 cases and the concomitant threat to public health. In addition, Plaintiffs flatly err in claiming that EO 202.68 targets religious gatherings, and the Orthodox Jewish community specifically, or has less restrictive limitations for secular activities. Regardless, even if strict scrutiny applied here (and it does not), the fight against COVID-19 is a governmental interest of the highest order, and the Executive Order is narrowly tailored to meet that interest because it focuses on restricting gatherings in and around areas where the pandemic cases are spiking.
Second, the balance of equities and the public interest tip overwhelmingly in favor of New York’s mission to protect New Yorkers from the imminent dangers presented by COVID19. See Point II, infra.
Finally, Plaintiffs cannot establish irreparable harm, given that EO 202.68 permits religious gatherings in all three impacted zones just with restricted capacity. See Point III, infra.
Accordingly, Plaintiffs’ motion for a temporary restraining order and preliminary injunction should be denied.
FACTUAL BACKGROUND The ongoing COVID-19 pandemic has caused over 25,000 deaths in New York State, over 16,000 of which were in New York City alone, and hundreds of thousands of deaths
2

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worldwide.2 New York was, for much of this spring, the global epicenter of the crisis.3 Thanks to the lifesaving efforts of medical professionals, essential workers, state and local governments, and ordinary New Yorkers who have heeded calls to shelter-in-place and practice social distancing, this State’s daily death toll has been reduced from a peak of approximately 800 per day to an average of less than 10 per day.4 The threat is not over, however, as hundreds of New Yorkers remain hospitalized.5 Continued vigilance is essential in order to prevent a deadly second wave of the pandemic from afflicting the State and requiring additional extensive shutdowns of schools and businesses. See generally Zucker Decl. ¶¶ 46-7.
A. The COVID-19 Pandemic And The State’s Early Response COVID-19 is a highly infectious and potentially deadly respiratory disease caused by a newly discovered coronavirus that spreads easily from person-to-person. Zucker Decl. ¶ 8, Ex. B. Because there is no pre-existing immunity against this new virus, it has spread worldwide in an exceptionally short period of time. On January 31, 2020, the World Health Organization (“WHO”) declared a “public health emergency of international concern.” Zucker Decl. ¶ 10, Ex. C. Less than two months later, on March 11, 2020, WHO characterized the COVID-19 outbreak as a pandemic. Zucker Decl. ¶ 11, Ex. D. On March 7, 2020, pursuant to N.Y. Exec. Law § 29, Governor Cuomo issued Executive Order 202, implementing the State Comprehensive Emergency Management Plan and declaring a statewide disaster emergency. Zucker Decl. Ex. I. By Executive Order 202, the Governor suspended all State and local laws, rules, and regulations to the extent necessary to address the
2 Fatalities, New York State Department of Health (“DOH”), https://covid19tracker.health.ny.gov/views/NYSCOVID19-Tracker/NYSDOHCOVID-19Tracker-Fatalities?:embed=yes&:toolbar=no&:tabs=n. 3 See https://nyti.ms/3kUJgbs. 4 See New York, Covid Tracking Project, https://covidtracking.com/data/state/new-york#historical. 5 See id.
3

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COVID-19 emergency. Id. Following the issuance of Executive Order 202, Governor Cuomo issued multiple supplemental Executive Orders, continuing the temporary suspension and modification of certain laws relating to the state of emergency. See, e.g., Zucker Decl. ¶¶ 30-7.
Among the more important measures the Governor adopted as part of the New York on PAUSE initiative were restrictions on non-essential gatherings. Specifically, on March 23, 2020, the Governor issued Executive Order 202.10, which banned “[n]on-essential gatherings of any size for any reason.” Zucker Decl. Ex. M.
B. New York’s Phased Reopening Over the course of May and June, as the State’s infection and death rates began to stabilize and then decline, New York transitioned from the “New York on PAUSE” initiative to the “New York Forward” initiative, a phased plan to guide the reopening of non-essential businesses. Zucker Decl. ¶¶ 39-42. The New York Forward initiative was intended to begin reopening New York’s economy in a slow, measured way that would prevent any new spikes in COVID-19 cases. Zucker Decl. ¶¶ 39-42. On May 21, 2020, Governor Cuomo issued Executive Order 202.32, as part of the phased re-opening to permit non-essential outdoor gatherings of up to ten individuals for religious services or Memorial Day service or commemoration, provided the participants follow the social distancing and cleaning and disinfection protocols established by the New York State Department of Health (“DOH”). Zucker Decl. Ex. N. The following day, May 22, 2020, the Governor issued Executive Order 202.33, which further modified the ban to permit non-essential outdoor gatherings of up to ten individuals for any lawful purpose or reason, provided the participants follow the social distancing and cleaning and disinfection protocols established by DOH. Zucker Decl. Ex. O. On June 15, 2020, the Governor issued Executive Order 202.42, which extended
4

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Executive Order 202.33 until July 15, 2020, and further modified the restriction to permit nonessential outdoor gatherings of up to twenty-five individuals for any purpose or reason, provided the gathering was in a region that had reached Phase Three of the re-opening plan and the participants follow the social distancing, and cleaning and disinfection protocols established by DOH. Zucker Decl. Ex. P. Also on June 15, 2020, the Governor issued Executive Order 202.45, which permits non-essential gatherings of up to 50 individuals for any purpose or reason, provided the gathering is in a region that has reached phase four of the re-opening plan, and the participants follow the social distancing, cleaning, face covering, and disinfection protocols established by DOH. Zucker Decl. Ex. Q.
Through this measured reopening plan, which has been data-driven and guided by public health experts, the State was able to keep the daily number of new infections and new deaths relatively flat at a time when cases were spiking throughout the rest of the country. Zucker Decl. ¶¶ 42-46.
C. The Pandemic Is Not Over Nevertheless, with the colder weather looming in due to the fall season, there is a greater potential for super-spreader gatherings where one individual can infect many others. Superspreader events tend to happen in indoor spaces, with people in close proximity. Social occasions lead to more clusters than exposure in the workplace or home, and mass transmissions have occurred at weddings, temples, bars, and karaoke parties. And the risk is even higher if people are raising their voices in some way, such as singing or shouting. Zucker Decl. ¶ 65. Notably, the more people an individual interacts with at a gathering and the longer the interaction lasts, the higher the risk of becoming infected with COVID-19 and of the disease spreading. Zucker Decl. ¶ 67. The spread of the disease expands out from the mass gathering as the people who contract it interact with others, potentially at other mass gatherings. Zucker Decl. ¶ 69.
5

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Since early September 2020, DOH has observed clusters spike in a number of areas, including one large area in Brooklyn, two smaller areas in Queens, Broome County, Orange County, and in Rockland County. Id. ¶ 81. In the 20 zip codes that Governor Cuomo deemed most problematic, the positivity rate was 5.5 percent on Tuesday, far exceeding the 1.2 percent rate for the rest of the State.6 “Over the last week, the statewide rate of infection has regularly topped one percent—it was 1.45 percent in tests reported to the state on Monday—reflective of much higher rates of infection in hot spots.”7
Responding to this new surge, on October 6, 2020, in a public briefing, Governor Cuomo announced “a new cluster action initiative” (“cluster initiative”) to address COVID-19 hot spots that have cropped up.8 The cluster initiative is composed of three steps: (1) take dramatic action within the cluster; (2) take action in the area surrounding the cluster to stop the spread; and (3) take precautionary action in the outlying communities. Zucker Decl. ¶ 92. The clusters were developed from data showing where COVID-19 positive cases are occurring.9
EO 202.68 directs DOH to determine “areas in the State that required enhanced public health restrictions based upon cluster-based cases of COVID-19 at a level that compromises the State’s containment of the virus.” EO 202.68. The Order addresses these hot spots by creating three zones “[b]ased upon the severity of the cluster activity.” The “red zones” have experienced the sharpest in increase in COVID-19 cases, The rate of positive tests in the red zone in New York City is approximately 8%, whereas the rest of the City hovers at around 1%. Zucker Decl. ¶ 81.
The most severe mitigation measures are in the “red zones,” with gradually fewer
6 https://www.nytimes.com/2020/10/06/nyregion/cuomo-shutdown-coronavirus.html. 7 https://www.nytimes.com/2020/10/06/nyregion/cuomo-shutdown-coronavirus.html. 8 https://www.governor.ny.gov/news/governor-cuomo-announces-new-cluster-action-initiative#initiativemaps 9 See https://www.governor.ny.gov/news/governor-cuomo-announces-new-cluster-action-initiative/
6

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restrictions in “orange” and “yellow” zones as one moves further from the epicenter. Id. ¶ 83.
Specifically, in the red zones, DOH shall adopt mitigation measures that, in essence,
postpone all non-essential gatherings and close schools and non-essential businesses to the extent
they operate in person:
 “Non-essential gatherings of any size shall be postponed or cancelled”;  “All non-essential businesses, as determined by the Empire State Development
Corporation based upon published guidance, shall reduce in-person workforce by 100%”;  “[A]ny restaurant or tavern shall cease serving patrons food or beverages on-premises and may be open for takeout or delivery only”; and  “[T]he local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.”
However, unlike these schools, businesses, restaurants and bars, houses of worship in the
red zone need only reduce capacity: “houses of worship shall be subject to a capacity limit of
25% of maximum occupancy or 10 people, whichever is fewer.” Id.
In moderate severity warning areas, or “orange zones,” DOH shall adopt mitigation
measures that includes the “closure of all schools for in-person instruction” as well as the
following other mitigation measures:
 “Non-essential gathering shall be limited to 10 people”;  [C]ertain non-essential businesses, for which there is a higher risk associated with the
transmission of the COVID-19 virus, including gyms, fitness centers or classes, barbers, hair salons, spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis, and other personal care services shall reduce in-person workforce by 100%”; and  “[A]ny restaurant or tavern shall cease serving patrons food or beverages inside onpremises but may provide outdoor services, and may be open for takeout or delivery, provided however, any one seated group or party shall not exceed 4 people.” However, unlike schools and personal care businesses, houses of worship in orange zones
may remain open and are not limited to 10 people: “houses of worship shall be subject to a
maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is
fewer.” Id. (emphasis added).
7

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In precautionary or “yellow zones,” DOH has to adopt the following mitigation measures:
 “Non-essential gatherings shall be limited to no more than 25 people”;  “[A]ny restaurant or tavern must limit any one seated group or party size to 4
people”; and  “[T]he Department of Health shall issue guidance by October 9, 2020 regarding
mandatory testing of students and school personnel, and schools shall adhere to such guidance.” However, in yellow zones, houses of worship are not necessarily limited to 25 people, but instead are “subject to a capacity limit of 50% of its maximum occupancy and shall adhere to [DOH] guidance.” As Governor Cuomo explained at the October 8, 2020 press conference discussing the new cluster action initiative, “working with the top public health experts, New York State developed a science-based approach to attack these clusters and stop any further spread of the virus, including new rules and restrictions directly targeted to areas with the highest concentration of COVID cases and the surrounding communities.”10 The key purpose of EO 202.68 is to tackle the risk posed by mass gatherings, including those taking place in houses of worship. Explaining the rationale behind EO 202.68, Governor Cuomo said: “A mass gathering causes infections, infections cause a cluster, a cluster causes community spread.” Schick Decl. Ex. F at 3. Stated another way, the EO effectively mitigates the risk of infection and reduces transmission by reducing density in places where people gather, including houses of worship. Zucker Decl. ¶ 66, 88.
THE PRESENT LAWSUIT AND MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Plaintiffs, which include an Orthodox Jewish organization, synagogues, and rabbis, allege
10 See https://www.governor.ny.gov/news/governor-cuomo-announces-new-cluster-action-initiative
8

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that EO 202.68 violates their constitutional rights by limiting attendance at houses of worship that fall within “red,” “orange,” and “yellow” zones, particularly as Orthodox Jewish congregants get ready to celebrate three upcoming Jewish Holidays on October 9, 10, and 11. Compl. ¶¶ 74, 76, 97. Plaintiffs commenced this action by filing a complaint on or about October 8, 2020. ECF No. 1 (“Complaint” or “Compl.”). The Complaint alleges only one count: that EO 202.68 violates the Free Exercise Clause. First, Plaintiffs argue that EO 202.68 is facially discriminatory as the restrictions in each zone expressly impose gathering restrictions on “houses of worship.” Compl. ¶¶ 98-99. Second, Plaintiffs argue that EO 202.68 infringes on the religious practices of the Orthodox Jewish community, and “Defendants actions and contemporaneous statements establish this lack of neutrality.” Compl. ¶ 103.
Plaintiffs filed their motion for a temporary restraining order and preliminary injunction on October 8, 2020, requesting that the Court enjoin Governor Cuomo from enforcing EO 202.68 to restrict the gathering in Plaintiffs’ houses of worship effective on or about October 9, 2020, which is the date on which the first of three successive Jewish holidays begin. ECF No. 2, Memorandum of Law in Support of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction (“Pl Br.”).
STANDARD OF REVIEW The standard for determining whether to grant a motion for a temporary restraining order is identical to the standard for a preliminary injunction, Local 1814, Int’l Longshoreman’s Ass’n, AFL-CIO v. N.Y. Shipping Ass’n, 965 F.2d 1224, 1228 (2d Cir. 1992), which is “an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). Plaintiff bears the burden of establishing (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Winter, 555 U.S. at
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20. The final two factors – the balance of the equities and the public interest, “merge when the Government is the opposing party.” L&M Bus Corp. v. Bd. of Educ., 2018 WL 2390125, at *13 (E.D.N.Y. May 25, 2018) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).
ARGUMENT I. PLAINTIFF CANNOT ESTABLISH A LIKELIHOOD OF SUCCESS ON THE
MERITS A. The Executive Order Should Be Upheld Under The Jacobson Standard This is the latest in a series of actions brought in New York and across the country that have challenged state and local government restrictions on in-person gatherings enacted to reduce the death toll from COVID-19. Such actions contradict a long line of precedent, dating back to Jacobson v. Massachusetts, 197 U.S. 11 (1905), in which the Supreme Court declared that “a community has the right to protect itself against an epidemic of disease which threatens its members,” and that in such times judicial scrutiny is reserved for a measure that “has no real or substantial relation to” the object of protecting the public or is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 27, 31; see also Geller v. Cuomo, 2020 WL 4463207, at *10 (S.D.N.Y. Aug. 3, 2020) (relying on Jacobson to uphold ban of non-essential gatherings of over 50 people); Phillips v. City of N.Y., 775 F.3d 538, 543 (2d Cir. 2015) (“‘The right to practice religion freely does not include liberty to expose the community . . . to communicable disease.”) (quoting Prince v. Mass., 321 U.S. 158 (1943)). The most recent Supreme Court decision in the Jacobson line is South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring), which is dispositive here. The plaintiffs in South Bay challenged an Executive Order issued by the Governor of California that limits “attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.” Id. at *1. Concurring with the Court’s denial of plaintiffs’
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application for preliminary injunctive relief, Chief Justice Roberts stated as follows:
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ When those officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.
Id. at *2-*3 (denying injunctive relief against order aimed at limiting spread of COVID-19); see
also Ass’n of Jewish Camp Operators v. Cuomo, 2020 WL 3766496, at *8 (N.D.N.Y. July 6,
2020) (joining “the many courts throughout the country that rely on Jacobson when determining
if a governor’s executive order has improperly curtailed an individual’s constitutional right
during the COVID-19 pandemic”); Luke’s Catering Service, LLC v. Cuomo, 2020 WL 5425008,
at *14-15 (W.D.N.Y. Sept. 10, 2020) (applying Jacobson to deny preliminary injunction and
grant cross-motion to dismiss, in a challenge to New York’s 50-person limit on event venues).11
11 This principle of deference to states’ determinations as to how to protect their citizens from the COVID-19 pandemic has resulted in a chorus of decisions upholding state laws and directives. See, e.g., League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125 (6th Cir. 2020) (MI order closing indoor gyms); Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341 (7th Cir. 2020) (IL order limiting size of religious services); In re Abbott, 954 F.3d 772 (5th Cir. 2020) (TX temporary ban on unnecessary procedures, including abortion); Corbett v. Cuomo, 20 Civ. 4864, Dkt. No. 13 (S.D.N.Y. July 2, 2020) (NY order requiring travel quarantine); Ill. Republican Party v. Pritzker, 2020 WL 3604106 (N.D. Ill. July 2, 2020) (IL gatherings restriction); Elmsford Apt. Associates, LLC v. Cuomo, 2020 WL 3498456 (S.D.N.Y. June 29, 2020) (NY eviction moratorium); McCarthy v. Cuomo, 2020 WL 3286530 (E.D.N.Y. June 18, 2020) (NY gathering restriction); Slidewaters LLC v. Wash. Dep’t of Labor & Indus., 2020 WL 3130295 (E.D. Wash. June 12, 2020) (WA order closing certain business); Calvary Chapel Lone Mtn. v. Sisolak, 2020 WL 3108716 (D. Nev. June 11, 2020) (NV order limiting size of religious services); Prof’l Beauty Fed. of Cal. v. Newsom, 2020 WL 3056126 (C.D. Cal. June 8, 2020) (CA order closing non-essential business); Talleywhacker, Inc. v. Cooper, 2020 WL 3051207 (E.D.N.C. June 8, 2020) (NC order closing non-essential business); Best Supplement Guide, LLC v. Newsom, 2020 WL 2615022 (E.D. Cal. May 22, 2020) (CA order closing non-essential business); Antietam Battlefield KOA v. Hogan, 2020 WL 2556496 (D. Md. May 20, 2020) (MD gathering restriction); Open Our Oregon v. Brown, 2020 WL 2542861 (D. Or. May 19, 2020) (OR order closing non-essential business); Geller v. De Blasio, 2020 WL 2520711 (S.D.N.Y. May 18, 2020) (NY gathering restriction); Henry v. DeSantis, 2020 WL 2479447 (S.D. Fla. May 14, 2020) (FL order closing businesses and restricting movement); Calvary Chapel of Bangor v. Mills, 2020 WL 2310913 (D. Me. May 9, 2020) (ME gatherings restriction); McGhee v. City of Flagstaff, 2020 WL 2308479 (D. Az. May 8, 2020) (AZ stay-athome order and order closing business); Cross Culture Christian Ctr. v. Newsom, 445 F. Supp. 3d 758 (E.D. Cal. 2020) (CA gathering restriction); Cassell v. Snyders, 2020 WL 2112374 (N.D. Ill. May 3, 2020) (IL stay-at-home order); Lighthouse Fellowship Church v. Northam, 2020 WL 2110416 (E.D. Va. May 1, 2020) (VA gathering restriction); Gish v. Newsom, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020) (CA stay-at-home order); Legacy Church, Inc. v. Kunkel, 2020 WL 1905586 (D.N.M. Apr. 17, 2020) (NM gathering restriction).
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The Supreme Court’s decisions in Jacobson and South Bay are dispositive here. New York has right to protect itself from a deadly, world-wide pandemic that has already claimed the lives of over 210,000 Americans, including over 16,000 New York City residents. The Governor’s decision to close or restrict businesses and to postpone or limit gatherings in certain areas based on a sharp spike in COVID-19 cases in those areas is eminently reasonable. The Executive Order has a real and substantial relation to protecting the public under Jacobson because it seeks to contain further spread of this highly infectious disease where authorities have found that cluster-based cases threaten the State’s containment of the virus.
Plaintiffs’ attempts to distinguish Jacobson and South Bay are unavailing. Plaintiffs erroneously claim that EO 202.68 “imposes limits on houses of worship while simultaneously allowing gatherings of more individuals for comparable secular activity and businesses.” Pl. Br. at 19. But in actuality, EO 202.68 accommodates religious activity over secular activity. Indeed, in the red zone, non-essential gatherings are banned entirely, non-essential business are 100% closed, restaurants are closed for indoor and outdoor dining, and schools are entirely closed.12 Houses of worship, on the other hand, are only subject to a limit of 25% occupancy or 10 people, whichever is fewer. Similarly, in the orange zones, non-essential gatherings are limited to 10 people, schools and high risk businesses are entirely closed, and restaurants are closed for indoor dining. Houses of worship, on the other hand, are only subject to a limit of 33% occupancy or 25 people, whichever is fewer. Finally, in yellow zones, non-essential gatherings are limited to 25 people, restaurants cannot seat parties of more than four for indoor dining, and indoor dining is
12 Plaintiffs mistakenly claim that non-essential business are “undefined.” Pl. Br. at 16. Executive Order 202.6, issued in March, listed what businesses and services in New York State were deemed “essential” and the Empire State Development Corporation (“ESD”), a New York State public benefit corporation, also issued guidance in March to further clarify which businesses would be considered “essential” or “non-essential.” See Executive Order 202.6, available at https://www.governor.ny.gov/news/no-2026-continuing-temporary-suspension-and-modification-lawsrelating-disaster-emergency; ESD guidance, available at https://esd.ny.gov/guidance-executive-order-2026.
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already restricted to 25% capacity in New York City. Houses of worship, on the other hand, are only subject to a 50% occupancy limit.
In addition, as discussed in further detail below, any industries that are permitted to be open at full capacity in the yellow or orange zones are quite different from houses of worship, and thus are not appropriate comparators. See S. Bay, 140 S. Ct. 1613 (finding that operating grocery stores, banks, and laundromats was dissimilar to worship services); Elim Romanian Pentecostal Church, 962 F.3d at 347 (finding church service unlike grocery stores, pharmacies, and warehouses, and more like concerts and movie theaters).
To the extent Plaintiffs attempt to imply that the Jacobson standard does not apply to claims concerning the Free Exercise Clause, they are incorrect. South Bay dealt with a free exercise claim, and Chief Justice Roberts nonetheless applied Jacobson. The Seventh Circuit in Elim Romanian Pentecostal Church, 962 F.3d at 347, also recently applied Jacobson to a Free Exercise claim and cited to Jacobson to uphold an order that restricted religious gatherings to ten people. In that case, the court also relied on Jacobson to reject the plaintiff’s argument that the court should overturn the order because warehouses were allegedly more dangerous than religious services or because it was arbitrary for the state not to “differentiate between the maximum gathering permitted in a small church and a cathedral with seats for 3,000.” Id.
Similarly, the district court in Association of Jewish Camp Operators, 2020 WL 3766496, at *8, relied on Jacobson to reject a Free Exercise challenge to an Executive Order prohibiting overnight camps. The plaintiffs in that case, similar to Plaintiffs here, argued that the Second Circuit found in Phillips, 775 F.3d 538, that Jacobson does not apply to the Free Exercise Clause. See Pl. Br. at 19; Ass’n of Jewish Camp Operators, 2020 WL 3766496, at *8. The court disagreed, finding that “[c]ontrary to Plaintiffs’ position, the Second Circuit explicitly
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stated that it followed the reasoning of Jacobson when concluding that a mandatory vaccination policy, as a condition for admission to school, did not violate the Free Exercise Clause. Ass’n of Jewish Camp Operators, 2020 WL 3766496, at *8 (discussing Phillips, 775 F.3d 538).
Because Jacobson applies to Plaintiffs’ claims, and such claims cannot survive muster thereunder, Plaintiffs have no chance of success on the merits. The preliminary injunction can be denied on this basis alone.
B. The Executive Order Does Not Violate The First Amendment 1. The Executive Order Is Facially Neutral And Does Not Prevent Plaintiffs’ Free Exercise Of Religion
Even if the deferential Jacobson standard did not apply, Plaintiffs’ claim still cannot succeed under standard First Amendment analysis. To “state a free exercise claim, a plaintiff generally must establish that ‘the object of [the challenged] law is to infringe upon or restrict practices because of [its] religious motivation,’ or that the law’s ‘purpose . . . is the suppression of religion or religious conduct.’” Congregation of Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 619 (S.D.N.Y. 2013) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533 (1993)). The right of the free exercise does not relieve an individual or entity of the obligation to comply with a “valid and neutral law of general applicability.” Employment Div., Dept. of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990). As a result, where a limitation on the exercise of religion is not the object, “but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Id. at 878. Therefore, a law that only incidentally imposes a burden on the exercise of religion need only be supported by a rational basis. WTC Families for a Proper Burial, Inc. v. City of N.Y., 567 F. Supp. 2d 529, 539-40 (S.D.N.Y. 2008); Fortress Bible Church v. Feiner, 694 F.3d 208, 220 (2d Cir. 2012).
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Here, counter to Plaintiffs’ claims, the Executive Order is neutral and generally applicable. Indeed, the Executive Order applies to all non-essential industries, activities, and gatherings, as it restricts or closes schools, public gatherings of any kind, and non-essential businesses. Plaintiffs argue that “a law is ‘not neutral’ where ‘the religious ritual it regulates is the only conduct subject to the’ restriction by that restriction’s text.” Pl. Br. at 13 (quoting Cent. Rabbinical Congress of the U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 195 (2d Cir. 2014)) (emphasis added). Plaintiffs’ religious practice is certainly not the only conduct subject to restriction by the Executive Order, which Plaintiffs acknowledge.
The fact that there are restrictions specific to houses of worship does not mean that the Executive Order is not generally applicable. Indeed, the Nevada District Court denied a motion for a preliminary injunction against a similar Executive Directive that covered many industries, activities, and gatherings, but had a specific rule limiting houses of worship to 50% capacity. Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 4260438, at *1 (D. Nev. June 11, 2020). The plaintiff argued that this rule targeted religion and had lesser restrictions on comparable secular activity. Id. The court found that there were both “some secular activities comparable to inperson church services that are subject to more lenient restrictions” and others “subject to more stringent restrictions.” Id. (emphasis in original). As a result, the directive was not “an implicit or explicit attempt to specifically target places of worship” and was instead “neutral and generally applicable.” Id. Thus, the court rejected plaintiff’s facial Free Exercise challenge.” Id.13
Similarly here, the Executive Order applies to all non-essential activities and thus does not specifically target places of worship. Accordingly, it need only be supported by a rational basis.
13 Both the Supreme Court and the Ninth Circuit subsequently denied plaintiffs’ requested injunctive relief. Calvary Chapel Dayton Vall. v. Sisolak, 140 S. Ct. 2603 (2020); Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 4274901, at *1 (9th Cir. July 2, 2020) (citing S. Bay, 140 S.Ct. 1613). Plaintiffs only cite the dissent in the Supreme Court’s decision in Calvary. Pl. Br. at 19 (quoting Calvary, 140 S. Ct. at 2608 (Alito, J., dissenting)).
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Ass’n of Jewish Camp Operators, 2020 WL 3766496, at *10 (“The Supreme Court has established ‘the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.’”) (quoting Church of Lukumi Babalu Aye, Inc., 508 U.S. at 531). The rational basis for the Executive Order is, of course, the State’s continuing exercise of its police power to mitigate the ongoing public health crisis of COVID-19.
There are undeniable increases in COVID-19 cases in and around the neighborhoods that are subject to the Executive Order, and the rates of new cases and the positivity rates in these neighborhoods is significantly higher than in the rest of New York City. Guidance from all public health organizations is clear that social distancing is the best tool to prevent or reduce the spread of COVID-19. The Executive Order seeks to temporarily implement renewed restrictions on gatherings in these neighborhoods to end these spikes before they get worse within these neighborhoods and to prevent this renewed outbreak from spreading further outward. See id. at *16 (“[P]reventing the spread of COVID-19 is a legitimate interest, and that interest is rationally related to the prohibition on overnight camps.”); McCarthy, 2020 WL 3286530, at *6 (“Given the seriousness of the COVID-19 pandemic, I find it exceedingly unlikely that plaintiffs will be able to demonstrate that the COVID-19 Executive Orders do not have a rational basis.”).
2. The Executive Order Does Not Discriminate Against Religious Practice Because It Does Not Permit “Comparable” Secular Conduct
Plaintiffs incorrectly claim that the Executive Order “impermissibly discriminate against religious practice while simultaneously permitting comparable secular conduct.” Pl. Br. at 12. To the contrary, the Executive Order does not permit comparable secular conduct, because as explained above, it restricts religious practice less than secular conduct. See Section I.A., supra.
Plaintiffs nonetheless contend that EO 202.68 improperly permits schools, universities,
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and restaurants for indoor and outdoor dining to remain open, while religious gatherings are limited to 50% capacity. Plaintiffs ignore the significant other restrictions placed on these activities, however. Indoor dining is currently limited to 25% capacity, and must end at midnight. Further, parties are limited to groups of ten people, and there are various other safety precautions aimed at preventing parties from mingling. There are also extensive safety precautions in schools, and a significant number of students are engaged in full or partial remote learning.
Moreover, Plaintiffs’ comparison of religious services to dining is misplaced. Dining is unlike a religious service because in the case of ordinary restaurant service, the customers arrive and leave at different times, and individuals do not gather and mingle together with groups outside their party. With religious gatherings, on the other hand, individuals arrive at the same time, intermingle amongst each other, engage in prayer together as well singing, chanting, and dancing together, and generally leave at the same time. The State has been consistent with its restrictions of comparable events in which people arrive simultaneously, intermingle amongst each other, watch or engage in some event together, and leave at the same time. For example, currently all music and performance venues are required to remain closed throughout the entire State due to the risks posed by individuals arriving at the same time, intermingling during the event, and leaving en masse. Large events, such as weddings, are subject to certain numerical restrictions for the same reason. Theaters also remain closed.
For the same reasons, Plaintiffs are incorrect that offices, malls, and retail stores are comparable to religious services. In orange zones, such industries are permitted to open at 50% capacity, while religious services are restricted to 25% capacity. But again, malls and retail stores do not involve individuals arriving and departing at the same time and intermingling while jointly participating in the same event. Further, social distancing is possible within offices, but
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social distancing is less possible when individuals participate in joint prayer, singing, chanting, and dancing. Further, the risk of spread of COVID-19 is higher if people are raising their voices in some way, such as when singing or chanting. See Zucker Decl. ¶ 66.
Indeed, other courts have agreed that religious gatherings are more comparable to “functions that occur in auditoriums, such as concerts and movies,” Elim Romanian Pentecostal Church, 962 F.3d at 346, than to shopping or work spaces. As explained by the Seventh Circuit, concerts, movies, and religious gatherings place “members of multiple families close to one another for extended periods, while invisible droplets containing the virus may linger in the air. Functions that include speaking and singing by the audience increase the chance that persons with COVID-19 may transmit the virus through the droplets that speech or song inevitably produce.” Id. The court also rejected the plaintiff’s counterargument that people remain together for extended periods in warehouses and offices, noting that “most offices contain spaces that provide social distancing” and that warehouse workers were unlikely to “engage in the sort of speech or singing that elevates the risk of transmitting the virus.” Id. at 347. Further, Chief Justice Roberts also observed that concerts and church services are comparable to each other, but different from stores “in which people neither congregate in large groups nor remain in close proximity for extended periods.” See S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring).14
Because Plaintiffs cannot establish a comparable activity that is less restricted within the relevant zones, any infringement on Plaintiffs’ free exercise of their religion is therefore incidental. “Courts have upheld more extreme measures taken in response to public health needs, including quarantines, which limit a person’s right to assemble with any other person.” Amato v.
14 The holding in the preliminary injunction decision in Soos v. Cuomo, 2020 WL 3488742 (N.D.N.Y. June 26, 2020), cited by Plaintiffs, is therefore not applicable. In Soos, the plaintiffs showed that greater restrictions were being placed on gatherings for religious observances than on other types of comparable gatherings. Id. at *12. Plaintiffs have failed to show that here.
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Elicker, 2020 WL 2542788, at *11 (D. Conn. May 19, 2020) (citing, inter alia, Compagnie Francaise de Navigation a Vapeur v. La. Bd. of Health, 186 U.S. 380 (1902)).
3. The Executive Order Does Not Target Conduct Because Of Its Religious Motivation, Nor Does It Target The Orthodox Jewish Community
Plaintiffs flatly err in claiming that Governor Cuomo has singled out the Orthodox Jewish community for discriminatory treatment. See Pl. Br. at 17-18. To the extent Governor Cuomo stated to “religious institutions” and “members of the ultra-Orthodox community” that “[i]f you do not agree to enforce the rules, then we’ll close the [religious] institutions down” (Pl. Br. at 17), that was simply to explain that houses of worship would not be exempt from this generally applicable Executive Order. Governor Cuomo did not single out this community for negative treatment, but clarified that this community would not receive special treatment. Such statement is entirely consistent with the Constitution and the First Amendment. Employment Div., Dept. of Human Resources of Ore., 494 U.S. 872 (right of the free exercise does not relieve an individual or entity of the obligation to comply with a “valid and neutral law of general applicability”).
Nor was it discriminatory to acknowledge the fact that religious gatherings are mass gatherings that raise the potential of spread of COVID-19. Pl. Br. at 17. At this stage in the pandemic, it is no longer subject to dispute that mass gatherings can act as super-spreading events. Zucker Decl. ¶¶ 63-72. And a mass gathering is not less dangerous simply because it is religious in nature. Moreover, “‘[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease.’” Phillips, 775 F.3d at 543 (quoting Prince, 321 U.S. at 166-67).15
15 Further, the myriad of organizations that object to EO 202.68 shows that it does not only affect the Orthodox Jewish community uniquely. Indeed, a Catholic church, a law firm, and a car dealership have all initiated suits. Roman Catholic Diocese of Brooklyn, New York v. Cuomo, No. 20-cv-4844 (E.D.N.Y.); Plaza Motors of Brooklyn, Inc. v. Cuomo, No. 20-4851 (E.D.N.Y.) (car dealership); and Turturro Law, P.C. v. Cuomo, No. 20-cv-4824 (E.D.N.Y. (law firm).
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4. Even If Strict Scrutiny Applies – Which It Does Not – Plaintiffs’ Claims Would Still Fail
Strict scrutiny requires the State to show that the order “advance[s] interests of the highest order” and that it is “narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc., 508 U.S. at 546. The fight against COVID-19 is indeed a governmental interest of the highest order; “it bears repeating what is at stake . . . the [State] seeks to slow the spread of a virus that has hospitalized and killed tens of thousands of New Yorkers and infected hundreds of thousands more – in less than three months’ time.” Geller, 2020 WL 2520711, at *4. It is essential that New York City never get close to repeating the fast spread of COVID-19 and the resulting severe illnesses and deaths that occurred earlier this year. The Executive Order at issue here is narrowly tailored to that interest.
Although federal courts have repeatedly refused to apply the strict scrutiny standard to COVID-related executive orders, they have also repeatedly stated in dicta that these critical public health provisions would meet either standard. See, e.g., Legacy Church, Inc., 2020 WL 1905586, at *38 (“The [New Mexico] Order is reasonably related to the demands of the public health crisis, coronavirus. Moreover, if the [] Order was subject to a strict scrutiny analysis, the Court would conclude that it meets strict scrutiny.”); Calvary Chapel of Bangor, 2020 WL 2310913, at *9 n.17 (“Even if the [Maine] orders were subject to heightened scrutiny, the Governor would likely be able to show that they serve a compelling government interest (preventing the spread of COVID-19) and that they are narrowly tailored.”).
The same result follows for the Executive Order at issue here, particularly given the unprecedented ferocity of the disease in New York City and the extraordinary tailoring efforts the State has made. Indeed, prior Executive Orders applied city-wide or statewide. This Executive Order is so narrowly tailored that Governor Cuomo has declined to target areas by zip
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code because that was not specific enough. Further, the Executive Order sets out rules for three different zones, to ensure that restrictions were not unnecessarily harsh on the zones outside the primary hotspots. In addition, most of the City is not within the zones at all: because the increases in cases are specific to certain neighborhoods, so is the Executive Order.
Further, the restrictions on religious gatherings are narrowly tailored because there are again three different zones and religious gatherings are only subject to the strictest limits within the primary hotspots. In addition, these restrictions are necessary within these neighborhoods and communities, because that is where the spikes in cases are happening. The First Amendment’s protections do not require that the government ignore reality and common sense. The data is clear that these outbreaks are happening in these specific neighborhoods, and the government is acting on this data. To be clear, reacting quickly and decisively to prevent these spikes from getting out of control is certainly an “interest of the highest order,” and an Executive Order focusing on the neighborhoods with the spikes is narrowly tailored to that interest.
Plaintiffs also assert that prior, less severe restrictions were not enforced and thus it is irrational that the new, more severe restriction will be enforced. But there is nothing irrational about the State changing tactics based on changing circumstances. See S. Bay, 140 S. Ct. at 1614 (Roberts, C.J., concurring) (measures to prevent spread “should not be subject to secondguessing” especially where “a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground”). Also, it is clear that the prior rules and enforcement were insufficient to prevent the spikes in cases in these neighborhoods. Moreover, enforcement is largely at the local level, and to the extent the prior restrictions may have been under-enforced, it was not due to any action or inaction by the State.
Plaintiffs also complain that the Executive Order is targeting neighborhoods based on an
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increase in positive tests, but argues that hospitalizations and deaths would be the better indicator of an actual increase in COVID-19 cases. However, it is common knowledge at this point that hospitalizations and deaths are lagging indicators for increases in COVID-19 cases. The State must be able to act as quickly as possible where there are spikes in infection cases in order to protect the public health. Here, there is clear evidence of spikes in the relevant neighborhoods.
Finally, Plaintiffs complain about Governor Cuomo’s threats that religious gatherings will be shut down if they do not comply with the Executive Order. However, there is no basis for Plaintiffs to complain about a threatened enforcement, because it assumes that the relevant synagogues will refuse to comply with the Executive Order. The Court should not make such an assumption, and thus this claim regarding potential enforcement is not yet ripe. United States v. Fell, 360 F.3d 135, 140 (2d Cir. 2004) (The ripeness requirement “prevent[s] a federal court from entangling itself in abstract disagreements over matters that are premature for review because the injury is merely speculative and may never occur.”). II. THE BALANCE OF EQUITIES AND THE PUBLIC INTEREST WEIGH IN
FAVOR OF NEW YORK’S MISSION TO PROTECT ITS CITIZENS FROM A GLOBAL PANDEMIC The balance of equities and considerations of the public interest decidedly weigh in favor of denying Plaintiffs’ request for emergency relief. “As the Supreme Court reaffirmed in Winter[, 555 U.S. 7], a plaintiff seeking a preliminary injunction must demonstrate not just that they have some likelihood of success on the merits and will suffer irreparable harm absent an injunction, but also that the ‘balance of the equities tips in his favor and an injunction is in the public interest.’” Otoe-Missouria Tribe v. N.Y.S. Dep’t of Fin. Svcs., 769 F.3d 105, 112 n.4. (2d Cir. 2014). “These factors merge when the Government is the opposing party.” Make the Rd. N.Y. v. Cuccinelli, 419 F. Supp. 3d 647, 665 (S.D.N.Y. 2019) (citing Nken, 556 U.S. at 435). Further, the court must ensure that the “public interest would not be disserved” by the
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issuance of a preliminary injunction. Salinger v. Colting, 607 F.3d 68, 80 (2d Cir. 2010). In exercising their discretion in whether to enter an injunction, courts “should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” N.Y.S. Rifle & Pistol Ass’n v. City of N.Y., 86 F. Supp. 3d 249, 258 (S.D.N.Y. 2015), aff’d, 883 F.3d 45 (2d Cir. 2018) (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). This consideration includes the government’s interest in public health. Million Youth March, Inc. v. Safir, 155 F.3d 124, 125-26 (2d Cir. 1998) (modifying injunction because District Court failed to consider government’s interest in, inter alia, public health against First Amendment rights).
The government’s interest in preventing spikes in COVID-19 cases from increasing in severity is vitally important. Restricting all public gatherings, including religious gatherings, within neighborhoods that are seeing a spike in cases certainly furthers that interest. See Ass’n of Jewish Camp Operators, 2020 WL 3766496, at *21 (injunction was not in the public interest due to “the unprecedented nature of the COVID-19 pandemic, the deadly nature of the virus itself, the lack of a vaccine at the time of this writing, and lack of scientific agreement about its transmission”). Plaintiffs’ interest in having indoor, in-person religious gatherings of as many people as they wish, at a time when cases are spiking in and around their neighborhoods, cannot outweigh the critical need to ensure that the infection spikes do not rapidly increase and spread further. New York City saw firsthand how quickly the spread of COVID-19 can spiral out of control, and New York City saw firsthand how the result was an overwhelmed hospital system and a dramatic increase in severe illnesses and deaths. It is vital that the government be able to do everything possible to stop any case increases.
Plaintiffs’ claim that they will adhere to “rigorous health and safety protocols” is insufficient to ensure that the State can get the spike in COVID-19 cases under control. Pl. Br. at
23

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21. As explained above, religious services have specific risk factors, including that individuals arrive at the same time, intermingle amongst each other, engage in prayer, singing, chanting, and dancing together, and then leave at the same time. Plaintiffs concede as much. Pl. Br. at 9-10 (services will involve recitation of prayers sure to cause emotional reactions and each congregant giving a reading). Then there are further risks, given that individuals must remove their masks in order to eat at religious celebrations.
Also, Plaintiffs’ claim that they have adhered to “rigorous health and safety protocols” and that their continued adherence to “rigorous health and safety protocols” should itself be sufficient to prevent a spike in cases is clearly mistaken, as there is currently a spike of COVID19 cases in their neighborhoods. The current restrictions, guidelines, and enforcement levels plainly are not working in some areas. Thus, further restrictions and enforcement are necessary.
Accordingly, the public interest and equitable considerations require the denial of Plaintiffs’ motion. See Winter, 55 U.S. at 23-24 (holding “proper consideration” of public interest and equitable factor “alone require[d] denial of the requested injunctive relief”). III. PLAINTIFF HAS NOT SHOWN A LIKELIHOOD OF IRREPARABLE HARM
Plaintiffs failed to present sufficient evidence that the temporary measures implemented to combat the COVID-19 pandemic will cause it irreparable harm. Vis Vires Grp., Inc. v. Endonovo Therapeutics, Inc., 149 F. Supp. 3d 376, 390 (E.D.N.Y. 2016) (“To satisfy the irreparable harm requirement, Plaintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.”) (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)). EO 202.68 still permits religious gatherings. Indeed, as described above, religious gatherings have maximum occupancy limits higher than other public gatherings. In addition, even the most restrictive limit
24

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in the red zones permits religious gatherings of up to ten people, which is the minimum

requirement of a minyan, the quorum required for traditional Jewish public worship.

On the other hand, the State suffers irreparable harm any time that it is enjoined by the

court from enforcing one of its policies. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts,

C.J., in chambers). In the present case, such harm is manifest because the policy Plaintiffs

challenge is intended to halt neighborhood spikes in COVID-19 cases and prevent deadly

infections from increasing exponentially and spreading more widely. Enjoining the Executive

Order would impair the State’s critical ability to rapidly address the developing hotspots, and

would thereby endanger the public health.

CONCLUSION

For the reasons set forth above, Governor Cuomo respectfully requests that the Court

deny Plaintiffs’ motion for a temporary restraining order and preliminary injunction and grant

such other and further relief as the Court deems just and proper.

Dated: New York, New York October 9, 2020

LETITIA JAMES Attorney General of the State of New York
Attorney for Governor Cuomo

By: ____/s/_Todd A. Spiegelman______ Todd A. Spiegelman Erin R. McAlister Maryam Jazini Dorcheh Assistant Attorneys General 28 Liberty Street, New York, NY 10005 (212) 416-8661

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 Case 1:20-cv-04834-KAM-RML Document 18 Filed 11/03/20 Page 1 of 3 PageID #: 641

LETITIA JAMES ATTORNEY GENERAL

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
NOVEMBER 3, 2020

Via ECF The Honorable Judge Kiyo A. Matsumoto United States District Court for the Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

DIVISION OF STATE COUNSEL LITIGATION BUREAU

Re: Agudath Israel of America, et al. v. Cuomo, No. 20-cv-04834 (E.D.N.Y.)(KAM)(RML)

Dear Judge Matsumoto:

This Office represents Defendant Andrew M. Cuomo in his official capacity as the Governor of the State of New York (“Governor Cuomo”) in the above-referenced action. I write pursuant to Your Honor’s Individual Rule III(B)(1) to outline the arguments that Governor Cuomo intends to raise in his motion to dismiss Plaintiffs’ Complaint (ECF No. 1, “Compl.”) and to request a discovery stay pending a decision on his motion. We further request that the Court hold a premotion conference and set a briefing schedule after the Second Circuit decides Plaintiffs’ motion for an injunction pending their appeal from this Court’s denial of their motion for a preliminary injunction. The Second Circuit heard Plaintiffs’ motion today, November 3, 2020.1

Factual Background and Allegations

This case arises in the context of COVID-19, a “very lethal pandemic” that may result in “death or permanent injuries.” Transcript of Preliminary Injunction Hearing, October 9, 2020 (“Tr.”) at 65-66 (attached hereto as Ex. A). As of November 2, 2020, over 25,800 New Yorkers have died from this novel coronavirus, with over 16,000 fatalities in New York City alone.2

To counter the initial flood of COVID-19 cases in New York during March and April of this year, Governor Cuomo took swift, drastic action, including the issuance of Executive Orders (“EOs”) cancelling non-essential gatherings and temporarily closing non-essential businesses. E.g., EO 202.8, 202.10. These orders were critical measures that have saved untold thousands of lives. See Geller v. De Blasio, 2020 WL 2520711, at *4 (S.D.N.Y. May 18, 2020) (“preventing in-person gatherings is crucial to any strategy of containment.”). As New York successfully flattened the curve during the late spring and summer, the rate that COVID-19 tests showed positive results decreased significantly from a peak of around 48% in early April to a low of 0.7% in mid-August.3

But in early autumn the virus surged again, and though the positivity rate remained low at 1.2% statewide, the Governor announced that the rate in five New York “hotspots” had spiked to

1 See ECF No. 17. The Second Circuit is hearing the motion on the same schedule as a similar motion in the appeal from the denial of a preliminary injunction against Executive Order 202.68 in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 20-cv-4844 (E.D.N.Y.) (“Diocese”). Therein, Judge Garaufis will hold a pre-motion conference on the Governor’s dismissal motion after the Second Circuit rules on the motion before it for an injunction pending appeal. Diocese, 20-cv4844, Minute Entry, October 30, 2020. 2 See Fatalities, N.Y. State Dep’t of Health, available at https://on.ny.gov/2MxLRsJ. 3 https://forward.ny.gov/percentage-positive-results-region-dashboard.

28 LIBERTY STREET, NEW YORK, NY 10005 ● PHONE (212) 416-8661 ● WWW.AG.NY.GOV

Case 1:20-cv-04834-KAM-RML Document 18 Filed 11/03/20 Page 2 of 3 PageID #: 642

The Honorable Judge Kiyo A. Matsumoto November 3, 2020

Page 2 of 3

5.5%. ECF No. 2-9, Decl. of Pls. Counsel, Avi Schick, Ex. F at 9. To prevent further spread, the Governor issued EO 202.68 (“Order”) creating containment zones around the hotspots. The Order establishes central “red zones,” where non-essential gatherings are cancelled and schools and nonessential businesses may not operate in-person. EO 202.68. However, the Order permits red zone houses of worship to remain open with a capacity of 25% maximum occupancy or 10 people, whichever is fewer. Similarly, in orange zones, non-essential gatherings, schools, and certain nonessential businesses are subject to more severe restrictions than houses of worship. Precautionary “yellow zones” are subject to lesser restrictions than red and orange zones. The Order is temporary and the zones are re-evaluated based on changes in the underlying data. Id.; Schick Decl. Ex. F at 6.

Plaintiffs are an Orthodox Jewish group and three synagogues in Brooklyn and Queens and their leaders. When the Complaint was filed, two synagogues were located in red zones and one was in an orange zone. Compl. ¶¶ 13-15; Schick Decl. Ex. J at 10-12. (Recently, the Queens zones were downgraded to yellow. See infra). Plaintiffs claim that the Order violates the Free Exercise Clause of the United States Constitution and seek a declaratory judgment preventing its enforcement.

On October 9, 2020, this Court denied Plaintiffs’ preliminary injunction motion, holding that the Order was neutral, generally applicable, and did not burden Plaintiffs’ free exercise rights. Tr. at 57. The Complaint should be dismissed for the same reason, and because it is moot.

The Complaint Is Moot

“[T]he mootness doctrine ensures that the litigant’s interest in the outcome continues throughout the life of the lawsuit.” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993). “In order to satisfy the case-or-controversy requirement, a party must, at all stages of the litigation, have an actual injury which is likely to be redressed by a favorable judicial decision.” United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999).

The Order allegedly prevents Plaintiffs from worshipping “on Jewish holidays observed on October 9, 10, and 11, 2020.” Compl. ¶ 97; id. ¶¶ 1, 10, 105. Plaintiffs do not base their claim on any other holiday. Because those holidays have passed, enjoining the Order cannot redress Plaintiffs’ injuries. Nor does the Complaint implicate the exception to mootness for cases that are “capable of repetition, yet evading review.” Cook, 992 F.2d at 19. There is no “reasonable expectation” that Plaintiffs will be subject to the same restrictions again, id., because the Order is temporary and under constant reevaluation. Indeed, recent reductions in positivity rates led the Governor to downgrade the red and orange zones in Queens to yellow zones, thereby lifting the challenged restrictions on two of three synagogues that filed this action.4

The Complaint Fails to State a Free Exercise Claim

Plaintiffs fail to state a claim under the deferential standard of Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). See Tr. at 47-48 (finding Jacobson applies). There, the Supreme Court held that “a community has the right to protect itself against an epidemic of disease,” and in such

4 See Governor’s Press Release (https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-governorcuomo-details-covid-19-micro-cluster-metrics) wherein the Governor announced on October 22, 2020 a “micro-cluster” initiative even more narrowly focused than the initiative originally set forth in the Order. The data underlying the microcluster initiative showed marked improvement in the positivity rates in certain of the red, orange, and yellow zones.

28 LIBERTY STREET, NEW YORK, NY 10005 • PHONE (212) 416-8661 • FAX (212) 416-6075 (NOT FOR SERVICE OF PAPERS)

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The Honorable Judge Kiyo A. Matsumoto November 3, 2020

Page 3 of 3

times judicial scrutiny is reserved for a measure that “has no real or substantial relation to” the object of protecting the public health or is “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 197 U.S. at 27, 31. Applying Jacobson, Chief Justice Roberts recently found that when, during a pandemic, state officials “act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.” S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring) (upholding California order limiting occupancy at houses of worship).

Here, Plaintiffs fail to plausibly allege that the Order has no real or substantial relation to protecting the public health. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“reviewing court [must] draw on its judicial experience and common sense” to determine plausibility). This Court and others have endorsed the logical proposition that worship services risk spreading COVID-19 by placing many people close together indoors where invisible virus droplets linger in the air. Tr. at 63-64 (quoting Elim Romanian Pentecostal Church v. Pritzer, 962 F.3d 341, 346 (7th Cir. 2020)). Indeed, Plaintiffs admit that their sanctuaries hold up to 400 people, that group prayer is required, and that each congregant reads aloud. Compl. ¶¶ 57, 64-67. The Order plainly safeguards public health by reducing the risk of viral spread at Plaintiffs’ synagogues.

Moreover, Plaintiffs cannot establish a palpable invasion of rights secured by fundamental law because the Order does not target religion. A law that is neutral and generally applicable survives free exercise review if it is rationally related to a legitimate state interest. Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872, 881 (1990); Tr. at 50-57. Since the S. Bay decision, nearly every court that considered “free exercise challenges to COVID-related restrictions on religious gatherings” has applied a “rational basis analysis.” Diocese, 20-cv-4844 (E.D.N.Y.), ECF No. 32 (“Diocese Op.”) at 14-16 (collecting cases) (denying free exercise challenge to EO 202.68). This Court did so as well because “[t]here’s nothing on the face of the order’s text that singles out religious rituals per se, or even religion.” Indeed, it “accord[s] more lenient restrictions” to houses of worship “than other venues.” Tr. at 59-60; see also Diocese Op. at 19 (applying rational basis scrutiny to limitations on worship services “because they are gatherings, not because they are religious”). And this Court and Judge Garaufis rightly held that the Order survived rational basis review because it is related to the State’s legitimate interest in protecting the public from a deadly and highly-contagious virus. Tr. at 50, 65-66; Diocese Op. at 23. Because the Order rationally mitigates the ongoing crisis, Plaintiffs’ challenge fails.

The Court Should Stay Discovery

Discovery should be stayed pending resolution of the Governor’s motion because he has “made a strong showing that [Plaintiffs’] claim is unmeritorious,” and Plaintiffs will not be prejudiced by a relatively short stay pending a potentially dispositive decision. See Int’l Bhd. of Teamsters Local 456 v. Quest Diagnostics Inc., 2011 WL 13377389, at *3 (E.D.N.Y. Oct. 4, 2011) (citing Transunion Corp. v. PepsiCo, 811 F.2d 127, 130 (2d Cir. 1987)) (setting forth “good cause” standard for discovery stays). Plaintiffs have no basis to burden the State with discovery in this moot case.

We thank the Court for its time and consideration.

cc: All counsel of record (via ECF)

Respectfully submitted, ________/S/____________ Todd A. Spiegelman

28 LIBERTY STREET, NEW YORK, NY 10005 • PHONE (212) 416-8661 • FAX (212) 416-6075 (NOT FOR SERVICE OF PAPERS)

 
 Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 1 of 5 PageID #: 716

United States Court of Appeals
FOR THE
SECOND CIRCUIT _________________

E.D.N.Y. – Bklyn. 20-cv-4834
Matsumoto, J. 20-cv-4844 Garaufis, J.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of November, two thousand twenty.

Present:

Raymond J. Lohier, Jr., Michael H. Park,
Circuit Judges, Jed S. Rakoff,*
Judge.

Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein,
Plaintiffs-Appellants, v.
Andrew M. Cuomo, Governor of the State of New York, in his official capacity,
Defendant-Appellee.

20-3572

The Roman Catholic Diocese of Brooklyn, New York,
Plaintiff-Appellant, v.
Governor Andrew M. Cuomo, in his official capacity,
Defendant-Appellee.

20-3590

* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 2 of 5 PageID #: 717
These appeals, which are being heard in tandem, arise from the ongoing COVID-19 pandemic. The pandemic has caused more than 25,000 deaths in New York State and more than 10,000 deaths in Brooklyn and Queens alone. In response to a recent spike in cases concentrated in parts of Brooklyn, Queens, and other areas, Governor Andrew Cuomo issued an executive order to limit further spread of the virus in these COVID-19 “hotspots.”
The executive order directs the New York State Department of Health to identify yellow, orange, and red “zones” based on the severity of outbreaks, and it imposes correspondingly severe restrictions on activity within each zone. For example, the order provides that in “red zones,” non-essential gatherings of any size must be cancelled, non-essential businesses must be closed, schools must be closed for in-person instruction, restaurants cannot seat customers, and houses of worship may hold services but are subject to a capacity limit of 25 percent of their maximum occupancy or 10 people, whichever is fewer.
The Appellants—Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, Steven Saphirstein (collectively, “Agudath Israel”), and The Roman Catholic Diocese of Brooklyn, New York (the “Diocese”)—each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. In each case, the district court denied the Appellants’ motion for a preliminary injunction against the enforcement of the order. The Appellants now move for emergency injunctions pending appeal and to expedite their appeals, after an applications Judge on our Court denied their requests for an administrative stay, No. 20-3572, doc. 30; No. 20-3590, doc. 29.
Preliminarily, we conclude that Agudath Israel did not “move first in the district court for” an order “granting an injunction while an appeal is pending” before filing with this Court its present motion for an injunction pending appeal. Fed. R. App. P. 8(a)(1)(C). Instead, Appellant moved for a preliminary injunction pending the district court’s final judgment. In its briefs and at oral argument before this panel, moreover, Agudath Israel has not explained or otherwise justified its failure to comply with the straightforward requirement of Rule 8(a). Agudath Israel also has failed to demonstrate that “moving first in the district court would be impracticable,” Fed. R. App. P. 8(a)(2)(A), or even futile, particularly in light of the fact that a full eleven days elapsed after the district court’s ruling before Agudath Israel sought relief from this Court. We deny Agudath Israel’s motion for these procedural reasons. See Hirschfeld v. Bd. of Elections in N.Y., 984 F.2d 35, 38 (2d Cir. 1993).
We deny the Diocese’s motion for an injunction pending appeal—and would deny the motion filed by Agudath Israel if it were properly before us—for the reasons that follow.
As an initial matter, an injunction is “an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). To obtain an injunction from a district court, movants generally bear the burden of showing that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Id. at 20.
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To obtain a stay of a district court’s order pending appeal, more is required, including a “strong showing that [the movant] is likely to succeed on the merits.” New York v. U.S. Dep’t of Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020). The motions at issue here seek a remedy still more drastic than a stay: an injunction issued in the first instance by an appellate court. “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010) (quotation marks omitted).
“The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status.” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020) (quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (“[T]he Free Exercise Clause . . . protects the performance of (or abstention from) physical acts that constitute the free exercise of religion: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.”) (quotation marks omitted)). But the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (quotation marks omitted), “even if the law has the incidental effect of burdening a particular religious practice,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
“A law burdening religious conduct that is not both neutral and generally applicable, however, is subject to strict scrutiny.” Cent. Rabbinical, 763 F.3d at 193 (citing Lukumi, 508 U.S. at 531–32). “A law is not neutral if it is specifically directed at a religious practice.” Id. (cleaned up). Similarly, a law is “not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it.” Id. at 197.
The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (denying emergency injunctive relief to houses of worship that were subject to similar or less severe restrictions than those applicable to comparable secular gatherings); see also Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 342, 346–47 (7th Cir. 2020) (upholding an order that capped religious gatherings at ten people where the most comparable activities—those “that occur in auditoriums, such as concerts and movies”— had been banned completely); cf. Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 210–11 (2d Cir. 2011) (holding that a Kosher food labeling act was a neutral and generally applicable law subject to rational basis review because it applied
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to “food purchased by individuals of many different religious beliefs” and impacted consumers who purchased kosher products “for reasons unrelated to religious observance”).
Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings. Cf. No. 20-3590, doc. 20, Ex. L at 2 (Governor Cuomo criticizing the order’s policy of “clos[ing] every school” as “a policy being cut by a hatchet,” not “a scalpel”). To the contrary, the executive order “extend[s] well beyond isolated groups of religious adherents” to “encompass[] both secular and religious conduct.” Cent. Rabbinical, 763 F.3d at 195.
In a dissent from this Court’s order, our colleague asserts that the executive order is subject to strict scrutiny because it violates the minimum requirement of neutrality. The fact that theaters, casinos, and gyms are more restricted than places of worship, the dissent reasons, “only highlights the fact that the order is not neutral towards religion.” But this view is undermined by recent precedent, which makes clear that COVID-19 restrictions that treat places of worship on a par with or more favorably than comparable secular gatherings do not run afoul of the Free Exercise Clause. See, e.g., S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (guidelines that “place[d] restrictions on places of worship” less severe than those on comparable gatherings “appear consistent with the Free Exercise Clause”); see also Elim, 962 F.3d at 347 (same).
The dissent attempts to distinguish South Bay as having been decided during the early stages of the pandemic while local governments were actively shaping their response to changing facts on the ground. But here, too, the executive order is a response to rapidly changing facts on the ground. For several months, New York’s “limits and restrictions lessen[ed] and evolve[d] as the curve continue[d] to flatten,” and the State’s “limits and restrictions . . . increase[d]” only when “a review of the data indicate[d] a trend of increasing COVID-19 cases or spikes of cases in [the] cluster areas” targeted by the challenged executive order. No. 20 Civ. 4834 (KAM) (E.D.N.Y. 2020), doc. 12 at 14, 18–19. In any event, South Bay did not draw a distinction between the pandemic in its early or late stage. Its central relevant facts exist in New York in November 2020 just as they existed in California in May 2020: There is no vaccine or known cure for COVID-19; the pandemic has killed hundreds of thousands of Americans; and “[b]ecause people may be infected but asymptomatic, they may unwittingly infect others.” S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring).
Upon due consideration, and for the foregoing reasons, it is hereby ORDERED that the Appellants’ motions for injunctions pending appeal are DENIED. Among other infirmities in their arguments, the Appellants have failed to meet the requisite standard for an injunction pending appeal. See New York v. U.S. Dep’t of Homeland Sec., 974 F.3d at 214. It is further ORDERED that the motion to expedite the appeals is GRANTED.
We address here only the Appellants’ motions for injunctions pending appeal and to expedite their appeals, not their underlying appeals challenging the district courts’ refusals to provide preliminary injunctive relief. With respect to the underlying appeals, the parties have agreed to the following
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Case 1:20-cv-04834-KAM-RML Document 20 Filed 11/10/20 Page 5 of 5 PageID #: 720 merits briefing schedule: Appellants’ briefs are due Tuesday, November 17, 2020; Appellee’s brief is due Tuesday, December 8, 2020; Appellants’ reply briefs are due Monday, December 14, 2020, and the matter is to be calendared as early as the week of December 14, 2020. Judge Park dissents from the denial of the motions for injunctions pending appeal. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
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Park, Circuit Judge, dissenting:
In response to the COVID-19 pandemic, the Governor of New York issued an executive order imposing strict capacity limits on “houses of worship” in certain specified “zones.” Those restrictions apply only to religious institutions; in the same zones, pet shops, liquor stores, and other businesses the Governor considers “essential” remain open, free from any capacity limits. By singling out “houses of worship” for unfavorable treatment, the executive order specifically and intentionally burdens the free exercise of religion in violation of the First Amendment. I would thus grant the motions for injunctive relief pending appeal.
I
Discrimination against religion is “odious to our Constitution.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017). “Official action that targets religious conduct for distinctive treatment” must thus satisfy “the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 546 (1993).
A
First, the executive order fails the “minimum requirement of neutrality” towards religion, which means that a government policy may “not discriminate on its face.” Id. at 533. The order authorizes the New York State Department of Health to designate “areas in the State that require enhanced public health restrictions” as red, orange, or yellow zones. N.Y. Exec. Order No. 202.68. In each zone, the order subjects only “houses of worship” to special “capacity limit[s]”: in red zones, “25% of maximum occupancy or 10 people, whichever is fewer”; in orange zones, “the lesser of 33% of maximum occupancy or 25 people”; and in yellow zones, “50% of . . . maximum occupancy.” Id. But in the very same zones, numerous businesses deemed “essential” may operate with no such restrictions.1 This disparate treatment of religious and secular institutions is plainly not neutral.
The Governor’s public statements confirm that he intended to target the free exercise of religion. The day before issuing the order, the Governor said that if the “ultra-Orthodox [Jewish] community” would not agree to enforce the rules, “then we’ll close the institutions down.”2 See Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018) (factors relevant to the assessment of neutrality include “the specific series of events leading to the enactment or
1 See Guidance for Determining Whether a Business Enterprise Is Subject to a Workforce Reduction Under Recent Executive Orders, N.Y. State Dep’t of Econ. Dev. (updated Oct. 23, 2020), https://esd.ny.gov/guidance-executive-order-2026; Guidance for Determining Whether a Business Enterprise Is Subject to a Workforce Reduction Under Executive Order 202.68, N.Y. State Dep’t of Econ. Dev. (updated Oct. 7, 2020), https://esd.ny.gov/ny-cluster-action-initiative-guidance; Hearing Tr. at 81–82, No. 20-cv-4844 (E.D.N.Y. Oct. 15, 2020).
2 Governor Cuomo Updates New Yorkers on State’s Progress During COVID-19 Pandemic, Off. of the Governor (Oct. 5, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcriptgovernor-cuomo-updates-new-yorkers-states-progress-during-1.

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official policy in question” and “contemporaneous statements made by members of the decisionmaking body”).
The Governor argues that the executive order should nonetheless be subject to only rational-basis review because it treats houses of worship “more favorably” than “non-essential” secular businesses, like theaters, casinos, and gyms. But this only highlights the fact that the order is not neutral towards religion. Rational-basis review applies when a generally applicable policy incidentally burdens religion, but a policy that expressly targets religion is subject to heightened scrutiny. See Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 194 (2d Cir. 2014). Here, the executive order does not impose neutral public-health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. Such targeting of religion is subject to strict scrutiny.
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.), is not to the contrary. Summary decisions of the Supreme Court are precedential only as to “the precise issues presented and necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). Petitioners in South Bay sought a writ of injunction, which is granted only when “the legal rights at issue are indisputably clear.” Id. at 1613 (Roberts, C.J., concurring) (citation omitted). Here, Appellants seek injunctions pending appeal, for which they need to show, at most, a “‘substantial’ likelihood” of success on the merits. United for Peace & Just. v. City of New York, 323 F.3d 175, 178 (2d Cir. 2003). In addition, the motions before this Court arise from quite different circumstances. South Bay was decided during the early stages of the pandemic, when local governments were struggling to prevent the healthcare system from being overwhelmed and were “actively shaping their response to changing facts on the ground.” 140 S. Ct. at 1614 (Roberts, C.J., concurring). By contrast, the Governor’s stated concern here is maintaining localized containment. In April, New York reported a seven-day average of nearly 1,000 deaths per day from COVID-19.3 Six months later, that average has not exceeded 20 for months. See id.
Finally, the Governor overstates the import of Jacobson v. Massachusetts, 197 U.S. 11 (1905), which upheld a mandatory vaccination law against a substantive due process challenge. Jacobson was decided before the First Amendment was incorporated against the states, and it “did not address the free exercise of religion.” Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015). Indeed, the Court specifically noted that “even if based on the acknowledged police powers of a state,” a public health measure “must always yield in case of conflict with . . . any right which [the Constitution] gives or secures.” 197 U.S. at 25. Jacobson does not call for indefinite
3 See New York Covid Map and Test Count, N.Y. Times (updated Nov. 4, 2020), https://www.nytimes.com/interactive/2020/us/new-york-coronavirus-cases.html.
2

Case 1:20-cv-04834-KAM-RML Document 20-1 Filed 11/10/20 Page 3 of 4 PageID #: 723
deference to the political branches exercising extraordinary emergency powers, nor does it counsel courts to abdicate their responsibility to review claims of constitutional violations.
B
Applying strict scrutiny, there is little doubt that the absolute capacity limits on houses of worship are not “narrowly tailored.” Lukumi, 508 U.S. at 546. As the Governor himself admitted, the executive order is “not a policy being written by a scalpel,” but rather is “a policy being cut by a hatchet.” See Appellant’s Br., No. 20-3590, at 4.
First, the fixed capacity limits do not account in any way for the sizes of houses of worship in red and orange zones. For example, two of the Diocese’s churches in red or orange zones as of October 8, 2020 seat more than a thousand people. But the order nonetheless subjects them to the same 10-person limit in red zones applicable to a church that seats 40 people. Such a blunderbuss approach is plainly not the “least restrictive means” of achieving the State’s public safety goal. Lukumi, 508 U.S. at 578.
The fixed capacity limits also bear little relation to the particular COVID-19 transmission risks the Governor identifies with houses of worship, such as “singing or chanting” and mingling before and after services. Churchgoers and daveners remain subject to generally applicable distancing and mask requirements, so the additional capacity limits assume that worshippers— unlike participants in “essential” activities—will not comply with such restrictions. The Governor may not, however, “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020). Here, Appellants have made clear that they would follow any generally applicable public-health restrictions.4
II
The remaining injunction factors also support granting the motions. Appellants presented unrebutted evidence that the executive order will prevent their congregants from freely exercising their religion. And “[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.)).5
4 For example, the Diocese presented evidence that, even before the order, it had voluntarily restricted attendance to 25% of building capacity and required masks during Mass; it has also “agreed to accept potential further restrictions (such as eliminating congregant singing and choirs during Mass) as a condition of injunctive relief.” Appellant’s Br., No. 20-3590, at 4.
5 The district court in the Agudath Israel case found that plaintiffs had not demonstrated irreparable harm because “the Orthodox community has previously complied with the total lockdown” and they could “continue to observe their religion” with “modifications.” Tr. of Proceedings at 66, No. 20-cv-04834 (E.D.N.Y. Oct. 9, 2020). This was error, in light of which plaintiffs reasonably believed that another motion for injunction in the district court would be futile. See, e.g., Hernandez v. Comm’r, 490 U.S. 680, 699
3

Case 1:20-cv-04834-KAM-RML Document 20-1 Filed 11/10/20 Page 4 of 4 PageID #: 724 Finally, the balance of equities and public interest favor Appellants. The question is not
whether the State may take generally applicable public-health measures, but whether it may impose greater restrictions only on houses of worship. It may not.
I respectfully dissent from the denial of the motions for injunctions pending appeal.
(1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”).
4

 
 No. 20A90
Title: Docketed: Lower Ct:
Case Numbers: DATE Nov 16 2020
Nov 16 2020 Nov 17 2020
Nov 17 2020
Nov 17 2020
Nov 19 2020

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Agudath Israel of America, et al., Applicants v. Andrew M. Cuomo, Governor of New York
November 16, 2020
United States Court of Appeals for the Second Circuit
(20-3572)

PROCEEDINGS AND ORDERS

Application (20A90) for injunctive relief, submitted to Justice Breyer.

Main Document Service

Other

Other

Proof of

Response to application (20A90) requested by Justice Breyer, due Friday, November 20, by 2 p.m.

Motion for leave to file amici brief and motion for leave to file brief in compliance with Rule 33.2 filed by Americans United for Separation of Church and State, et al.
Main Document Proof of Service Other
Motion for leave to file amici brief filed by Muslim Public Affairs Council, et al.
Main Document Proof of Service Other
Motion to File Amicus Brief of Center for Constitutional Jurisprudence submitted.
Main Document Other Proof of Service
Motion for leave to file amicus brief filed by American Medical Association, et al.

Nov 20 2020
Nov 20 2020 Nov 20 2020 Nov 20 2020
Nov 22 2020 Nov 25 2020 Nov 25 2020

Main Document Proof of Service Other

Response to application from respondent Andrew M. Cuomo, Governor of New York filed.

Main Document Service

Main Document

Proof of

Motion for leave to file amicus brief and motion for leave to file brief in compliance with Rule 33.2 filed by First Liberty Institute.

Main Document Other Proof of Service

Motion for leave to file amici brief filed by Roman Catholic Archdiocese of Saint Paul and Minneapolis, et al.

Main Document Proof of Service

Motion for leave to file amicus brief and motion for leave to file brief in compliance with Rule 33.2 filed by Ethics and Religious Liberty Commission.

Main Document Proof of Service Other

Reply of applicants Agudath Israel, et al. filed.

Reply Proof of Service

Application (20A90) referred to the Court.

The application for injunctive relief presented to Justice Breyer and by him referred to the Court is granted in part. Respondent is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on applicants, including Agudath Israel of America’s current New York-based affiliates, pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court. Chief Justice Roberts, dissenting: I dissent for the reasons set out in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020) (Roberts, C. J., dissenting). Justice Breyer, with whom Justice Sotomayor and Justice Kagan join, dissenting: I dissent for the reasons set out in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020) (Breyer, J., dissenting). Justice Sotomayor, with whom Justice Kagan joins, dissenting: I dissent for the reasons set out in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___ (2020) (Sotomayor, J., dissenting).

NAME

ADDRESS

PHONE

Attorneys for Petitioners

Avi David Schick Counsel of Record

Troutman Pepper Hamilton Sanders LLP 875 Third Avenue New York, NY 10022

2127046126

avi.schick@troutman.com

Party name: AGUDATH ISRAEL OF AMERICA, et al.

Attorneys for Respondent

Barbara Dale Underwood Counsel of Record

Solicitor General Office of the Attorney General 28 Liberty Street New York, NY 10005-1400

212-416-8016

Barbara.underwood@ag.ny.gov

Party name: ANDREW M. CUOMO, in his official capacity as Governor of New York

Other

Stephanie Hall Barclay Counsel of Record

The Religious Liberty Initiative, Notre Dame Law School 3120 Eck Hall of Law Notre Dame, IN 46556

801-361-0401

sbarcla2@nd.edu

Party name: Muslim Public Affairs Council, Religious Freedom Institute's Islam and Religious Freedom Action Team, and Asma Uddin

Alexander J. Luchenitser Counsel of Record

Americans United for Separation of Church and State 1310 L St. NW Suite 200 Washington, DC 20005

202-466-7306

luchenitser@au.org

Party name: Americans United for Separation of Church and State; Bend the Arc: A Jewish Partnership for Justice; Central Conference of American Rabbis; Covenant Network of Presbyterians; Disciples Center for Public Witness; Disciples Justice Action Network; Equal Partners in Faith; General Synod of the United Church of Christ; Interfaith Alliance Foundation; Methodist Federation for Social Action; National Council of the Churches of Christ in the USA; Reconstructionist Rabbinical Association; Union for Reform Judaism

Anthony Thomas Caso Counsel of Record

Center for Constitutional Jurisprudence One University Drive Orange, CA 92866

877-855-3330

caso@chapman.edu

Party name: Center for Constitutional Jurisprudence

Henry Clay Quillen Counsel of Record

Whatley Kallas LLP 152 West 57th Street 41st Floor New York, NY 10019

2124477060

hquillen@whatleykallas.com

Party name: American Medical Association; Medical Society of the State of New York

Miles Edward Coleman Counsel of Record

Nelson Mullins Riley & Scarborough, LLP 2 West Washington Street Suite 400 Greenville, SC 29601

864.373.2352

miles.coleman@nelsonmullins.com

Party name: Ethics and Religious Liberty Commission

Gordon Dwyer Todd Counsel of Record

Sidley Austin LLP 1501 K Street, N.W. Washington, DC 20005

(202) 736-8760

gtodd@sidley.com

Party name: Roman Catholic Archdiocese of Saint Paul and Minneapolis, the Roman Catholic Diocese of Madison, Samuel A. Fryer Yavneh Academy, Montebello Christian School, and Saint Joseph Academy

Kelly J. Shackelford Counsel of Record

First Liberty Institute 2001 W Plano Pkwy Suite 1600 Plano, TX 75075

972-941-4444

kshackelford@firstliberty.org

Party name: First Liberty Institute