Rev. Steven Soos v. Cuomo

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

REV. STEVEN SOOS et al.,

1:20-cv-651

Plaintiffs, (GLS/DJS)

v.

ANDREW M. CUOMO et al.,

Defendants.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFFS:

148-29 Cross Island Parkway CHRISTOPHER A. FERRARA,

Whitestone, NY 11357 ESQ.

10506 Burt Circle MICHAEL McHALE, ESQ.

Ste 110

Omaha, NE 68114

FOR THE DEFENDANTS:

Andrew M. Cuomo & Letitia James

HON. LETITIA JAMES ADRIENNE J. KERWIN

New York State Attorney General Assistant Attorney General

The Capitol

Albany, NY 12224

Bill de Blasio

HON. JAMES E. JOHNSON MELANIE SADOK

Corporation Counsel of the City of ELLEN PARODI

New York HILARY M. MELTZER

New York City Law Department Assistants Corporation Counsel

100 Church Street

New York, NY 10007

FOR THE PROSPECTIVE AMICUS

CURIAE:

Ahuva Kleinman

Mandelbaum Salsburg PC RONALD D. COLEMAN, ESQ.

3 Becker Farm Road

Roseland, NJ 07068

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pending is an application for preliminary injunctive relief filed by

plaintiffs Reverend Steven Soos, Reverend Nicholas Stamos, Daniel

Schonbrun, Elchanan Perr, and Mayer Mayerfeld.1 (Dkt. Nos. 2, 7.) In

their most recent filing, plaintiffs seek an order restraining and enjoining

defendants Andrew M. Cuomo, Governor of the State of New York; Letitia

James, Attorney General of the State of New York; and Bill de Blasio,

Mayor of the City of New York: (1) from enforcing any gathering limits to

outdoor religious gatherings; and (2) from imposing any limitation on

indoor gathering . . . for religious gatherings in parity

1 Plaintiffs’ initially sought a temporary restraining order, but, at the conclusion of the

return on that application, the court discussed with the parties the preferability of allowing them

to supplement the record and argument, and address the application for preliminary injunctive

relief without resort to a further evidentiary hearing; the court’s proposed course of action was

acceptable to all the parties and obviates the need to consider the application for a temporary

restraining order. (Dkt. No. 31, Attach. 1 at 38-49.)

2

with the 100% occupancy allowed for favored

“essential businesses,” day camps and special

education classes, or, alternatively, at least 50%

occupancy in keeping with what is permitted for

“non-essential” businesses and every other indoor

activity allowed to continue under Phases Two and

Three except religious activity, which alone is still

arbitrarily confined to 25% occupancy.

(Dkt. No. 32 at 10.) For the reasons explained and to the extent described

below, the application for a preliminary injunction is granted.

II. Background

For the past several months, the United States, and, indeed, the

entire world, has been suffering from a global pandemic brought about by

COVID-19. The State of New York, and particularly the New York City

metropolitan area, have been described as the “epicenter” of the pandemic.

See New York Coronavirus Map and Case Count, N.Y. Times (last visited

June 26, 2020), https://www.nytimes.com/interactive/2020/us/

new-york-coronavirus-cases.html. To date, there have been 395,168

cases, and 31,029 deaths because of COVID-19 in the State of New York.

See id.

A. The Executive Orders

Beginning in March 2020, in response to the COVID-19 pandemic

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besieging New York, Governor Cuomo issued a series of executive orders,

placing restrictions on New Yorkers:

(1) Order 202, issued on March 7, declared a disaster emergency in the

State of New York. (Dkt. No. 1, Attach. 1 at 1-3.)

(2) Order 202.1, issued on March 12, prohibited large gatherings of over

500 people. (Id. at 4-7.)

(3) Order 202.3, issued on March 16, narrowed the prohibition on large

gatherings to fifty persons. (Id. at 10-11.)

(4) Order 202.6, issued on March 18, required all New York State

businesses to “reduce the in-person workforce at any work locations by

50%,” with exceptions for those businesses and entities that provided

“essential services or functions.” (Id. at 17-18.)

(5) Order 202.8, issued on March 20, reduced the in-person workforces

of non-essential businesses by 100%. (Id. at 21-22.)

(6) Order 202.10, issued on March 23, declared a total ban on “non-

essential gatherings of individuals of any size for any reason.” (Id. at

25-28.)

(7) Order 202.17, issued on April 15, required face-coverings to be worn

“when in a public place and unable to maintain, or when not

maintaining, social distance.” (Id. at 46.)

(8) Order 202.31, issued on May 14, extended the closure of non-

essential businesses and entities, and the ban on non-essential

gatherings. (Id. at 69-70.) The Order also provided that “[a]ll

enforcement mechanisms by state or local governments shall continue

to be in full force an[d] effect until June 13, 2020 unless later extended

or amended by a future Executive Order.” (Id.)

(9) Order 202.32, issued on May 21, modified the previous ban on non-

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essential gatherings “to permit a gathering of ten or fewer individuals for

any religious service or ceremony,” provided that certain social

distancing and health protocols were adhered to, and ordered that “any

drive-in or remote religious service may continue in excess of the ten

person limit so long as there is no in-person contact between

participants.” (Id. at 71-73.)

(10) Order 202.33, issued on May 22, permitted non-essential

gatherings of ten or fewer individuals “for any lawful purpose or reason,”

provided that certain social distancing and health protocols were

adhered to. (Id. at 74.)

(11) Order 202.34, issued on May 28, continued the restriction,

postponement, and/or cancellation, of all non-essential gatherings of

more than ten individuals, but allowed for any region that met certain

public health and safety metrics to begin “Phase One reopening.” (Id.

at 75-76.)

(12) Order 202.35, issued on May 29, ended workplace reductions and

restrictions in certain regions for non-essential businesses, the “Phase

Two industries,” which include: professional services, administrative

support, and information technology; real estate services, building and

property management, leasing, rental, and sales services; retail in-store

shopping, rental, repair, and cleaning; barbershops and hair salons; and

motor vehicle leasing, rental, and sales. (Id. at 77-78.) The restriction

on outdoor gatherings of groups of more than ten people remained in

place. (Id.)

(13) Order 202.36, issued on June 2, declared that any region to meet

certain public health and safety metrics “may allow outdoor, low-risk

recreational activities and businesses providing such activities, as

determined by Empire State Development Corporation, to be permitted

to operate, in accordance with Department of Health guidance.” (Id. at

79-80.)

(14) Order 202.37, issued on June 5, declared that “special education

services and instruction required under Federal, state or local laws,

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rules, or regulations, may be provided in person for the summer term in

school districts.” (Id. at 81.)

(15) Order 202.38, issued on June 6, modified Order 202.35, permitting

any region to have entered “Phase Two” of New York’s reopening plan

to allow “non-essential gatherings for houses of worship at no greater

than 25% of the indoor capacity of such location.” (Id. at 82-83.) The

restriction on outdoor gatherings of groups of more than ten people

remained in place. (Id.)

(16) Order 202.42, issued on June 15, modified Order 202.35 and Order

202.38, permitting any region to have entered “Phase Three” of New

York’s reopening plan to allow “non-essential gatherings . . . [of] twenty-

five (25) or fewer individuals, for any lawful purpose or reason.” (Dkt.

No. 33, Attach. 1 at 5.)

On June 17, 2020, Mayor de Blasio issued an “Emergency Executive

Order” incorporating Governor Cuomo’s executive orders, and “direct[ing]

the Fire Department of the City of New York, the New York City Police

Department, the Department of Buildings, the Sheriff, and other agencies

as needed to immediately enforce the [orders].” (Dkt. No. 32, Attach. 3 at

1-2.)

B. The Guidance

A document entitled “Guidance for Determining Whether a Business

Enterprise is Subject to a Workforce Reduction Under Recent Executive

Orders,” (hereinafter, the “Guidance Document”), was published and

simultaneously updated by the State of New York with the issuance of the

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executive orders described above. (Dkt. No. 1, Attach. 1 at 94-125, 128-

38.)

From March 20 through March 24, 2020 the Guidance Document

provided that “worship services” are included among the enumerated

businesses that “must remain closed and are not eligible for designation as

an essential business for purposes of this guidance.” (Id. at 98.)

From March 25 through April 7, 2020 the Guidance Document

provided that although “[h]ouses of worship are not ordered closed[,] . . . it

is strongly recommended not to hold congregate services,” and reiterated

that “worship services . . . are not eligible for designation as an essential

business for purposes of this guidance.” (Id. at 105.) From April 8 through

April 9, 2020 “worship services” continued to be listed as among the

businesses that “must remain closed and are not eligible for designation as

an essential business for purposes of this guidance.” (Id. at 113.)

From April 10 through May 20, 2020 the Guidance Document

provided:

Pursuant to Executive Order 202.10 . . . , all non-

essential gatherings of individuals of any size for any

reasons (e.g. worship services, parties, celebrations

or other social events) are canceled or postponed.

Congregate services within houses of worship are

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prohibited. Houses of worship may only be used by

individuals and only where appropriate social

distancing of, at least, six feet between people can be

maintained. Further, individuals should not gather in

houses of worship, homes, or other locations for

religious services until the end of this public health

emergency. If possible, religious leaders should

consider alternative forms of worship, replacing in-

person gatherings with virtual services, such as

phone or conference calls, videoconference calls, or

online streaming.

(Id. at 123.)

From May 21 through June 5, 2020, the Guidance Document

permitted a gathering of ten or fewer people for a religious service or

ceremony, provided that certain social distancing and health protocols were

adhered to, and permitted “any drive-in or remote religious service may

continue in excess of the ten person limit so long as there is no in-person

contact between participants.” (Id. at 135-36.) It further provided that

“[f]aith leaders should continue to consider and use alternative forms of

worship,” and that “congregations of groups for religious service or

ceremony in excess of ten in-person participants remain prohibited.” (Id.)

Guidance for “Phase Two Industries” limit indoor capacity to no more

8

than 50% of maximum capacity.2 See, e.g., Reopening New York:

Essential and Phase II Retail Business Guidelines for Employers and

Employees, https://www.governor.ny.gov/sites/governor.ny.gov/files/

atoms/files/GeneralRetailSummaryGuidance.pdf; Reopening New York:

Hair Salon and Barbershop Guidelines for Employers and Employees,

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/HairSal

onsAndBarbershopSummaryGuidance.pdf. And guidance for restaurants

in “Phase Three” limits indoor capacity to no more than 50% of maximum

occupancy, exclusive of employees. (Dkt. No. 32, Attach. 6 at 1.)

Beginning today, on June 26, outdoor graduations of up to 150

people will be allowed.3 See New York State Department of Health,

Updated Interim Guidance for Graduation Celebrations During the COVID-

19 State of Emergency (June 14, 2020), https://coronavirus.health.ny.gov/

system/files/documents/2020/06/doh_covid19_updatedgraduationguidance

_061420.pdf; Governor Announces Outdoor Graduations of up to 150 Will

2 The court takes judicial notice of the information contained on New York State’s

official website as such public information is “accurately and readily determined from sources

whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).

3 The court takes judicial notice of the information contained on the New York State

Department of Health’s official website as such public information is “accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid.

201(b)(2).

9

Be Allowed Beginning June 26th (June 7, 2020), https://on.ny.gov/311

JGWN.

C. The Protests

Mass race-related protests have erupted across the nation, including

in the State of New York, in response to the death of African-American

George Floyd on May 25, 2020. (Compl. ¶ 22.) Protesters, sometimes in

groups of thousands, have taken to the streets of New York City as well as

other major cities in the State of New York. (Id. ¶¶ 22, 61, 69.)

During this time, a “social media campaign” has encouraged theaters

in New York, which are to be closed until “Phase Four” of New York’s

reopening plan, to open their lobbies and restrooms for protesters. (Dkt.

No. 1, Attach. 1 at 160-64.)

D. Responses From Cuomo and de Blasio

1. Governor Cuomo

During a press conference held on June 1, 2020, when asked if he

would “suggest people not go out and protest,” Governor Cuomo

answered:

No, I think you can protest, but do it smartly and

intelligently. . . . There were protests all across the

country. Protest. Just be smart about it. With this

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virus, you can do many things now as long as you’re

smart about it, right? You can reopen, you can go

into a store and you can do a lot of things, just be

smart.

(Id. at 146.) When asked what the difference is “between protesting and a

business, say, in the city who wants to reopen smartly if it’s not at the

phase yet that they’re technically allowed to,” Governor Cuomo answered:

Well, that’s where we’re at, but it has to be a business

where you can be smart. Be smart, meaning socially

distant. You don’t conduct business in a way where

you have people within six feet. You have to wear the

mask. You have to do the hand sanitizer. That’s

where we’re going to be.

(Id. at 146-47.)

During a press conference held on June 4, 2020, when asked about

his reopening plans, and if there was a way to “allow high school

graduation ceremonies with social distancing,” Governor Cuomo remarked:

“Did you hear anything that we’ve been talking about for the past 96

days? . . . [Y]eah I know everybody wants to go to a high school

graduation, I get it. Not if they’re going to die.” (Id. at 150-52.) When

asked how he is able to justify opening a patio for outside dining, but will

not allow high school graduation ceremonies with social distancing,

Governor Cuomo answered: “What difference does it make? . . . The issue

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is a public health issue and you don’t want people sick and dead. . . . It’s

about death, it’s about balancing the risk versus the reward, balancing the

desires and wants versus the consequences.” (Id. at 151-52.)

During this same press briefing, Governor Cuomo also stated, “I want

to thank the protestors. . . . I stand with the protestors on the point that we

need meaningful reform.” (Compl. ¶ 65 (emphasis omitted).)

When explaining the modification of non-essential gatherings for

houses of worship to no greater than 25% of the indoor capacity of such

location, provided in Order 202.38, Governor Cuomo explained, in part:

“We are going to accelerate the opening of temples, mosques, [and]

churches. . . . 25 percent occupancy is not as easy as 100 percent

occupancy but 100 percent occupancy is a mass gathering and you really

can’t do social distancing.” (Dkt. No. 1, Attach. 1 at 140.) He further

advised New Yorkers to “[b]e smart. It does not mean you go to a temple

or a mosque and you sit right next to a person. You have to socially

distance.” (Id.)

2. Mayor de Blasio

On April 28, Mayor de Blasio appeared in Williamsburg at a Jewish

funeral gathering, which was dispersed by the New York Police

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Department (NYPD). (Compl. ¶ 53.) Via Twitter, Mayor de Blasio wrote:

“Something absolutely unacceptable happened in Williamsburg tonite [sic]:

a large funeral gathering in the middle of this pandemic. When I heard, I

went there myself to ensure the crowd was dispersed. And what I saw

WILL NOT be tolerated so long as we are fighting the Coronavirus.” (Dkt.

No. 1, Attach. 1 at 126.) This was followed by another tweet: “My message

to the Jewish community, and all communities, is this simple: the time for

warnings has passed. I have instructed the NYPD to proceed immediately

to summons or even arrest those who gather in large groups. This is about

stopping this disease and saving lives. Period.” (Id. at 127.)

During a June 2, 2020 media conference, when asked: “What about

the retail store owner facing imminent financial ruin or the religious person

who cannot [attend a] house of worship? What about their pain and

anger?” Mayor de Blasio replied, in part: “When you see a nation, an entire

nation simultaneously grappling with an extraordinary crisis seeded in 400

years of American racism[,] I’m sorry[,] [t]hat is not the same question[] as

the understandably aggrieved store owner, or the devout religious person

who wants to go back to services.” (Id. at 155-56.)

On June 4, 2020, Mayor de Blasio, without a mask, attended and

13

addressed a political gathering, held in memory of George Floyd. (Compl.

¶ 71.) Neither the ten-person limit on outdoor gatherings, nor the social

distancing protocols, were adhered to. (Id.)

E. Executive Orders’ Effect on Plaintiffs

1. Rev. Steven Soos and Rev. Nicholas Stamos

Soos and Stamos are Catholic priests in the North Country region of

New York, “who offer[] Mass and provide[] the other Sacraments of the

Catholic Church to congregations located in Glens Falls, Massena[,] and

Nicholville[, New York].” (Id. ¶¶ 3-4, 77, 79.) Soos and Stamos have been

forbidden from offering Mass and the other Sacraments beyond an ever-

changing maximum number of people. (Id. ¶¶ 85-96.) Because of the

limitations proscribed in the executive orders, Soos and Stamos are forced

to either turn away parishioners who wish to attend Mass—a weekly

obligation that Catholics face “under pain of mortal sin”—or to hold more

Masses per day than are possible. (Id. ¶¶ 86-93.) Likewise, the

percentage-based capacity limit prevents Soos and Stamos from holding a

daily Mass for Massena students when they return to school. (Id. ¶ 95.)

The permitted “drive-in” Masses are of little help to Soos, Stamos,

and their congregation. (Id. ¶ 97.) Congregants are prohibited by the

14

executive orders from leaving their vehicles at these drive-in Masses,

which prevents congregants from kneeling while receiving Holy

Communion, as is commanded by the Catholic religion. (Id.) Thus, the

orders effectively “prohibit reception of Holy Communion itself—the very

essence of the Mass—except under threat of prosecution and fines.” (Id.)

And although full outdoor masses are possible at the large churches at

which Soos and Stamos hold Mass, the executive orders “make[] that

impossible.” (Id. ¶ 100.)

Finally, the executive orders burden the Catholic practices of Holy

Matrimony and of “outdoor burial services” where Soos and Stamos are

forced to bar a certain amount of family members and friends from

attending a wedding or a“graveside as their loved ones are laid to rest.”

(Id. ¶¶ 96, 101.)

2. Daniel Schonbrun, Elchanan Perr, and Mayer Mayerfeld

Schonbrun, Perr, and Mayerfeld are Orthodox Jewish congregants

who attend synagogues in Brooklyn, New York, where they reside. (Id.

¶¶ 5-7, 103.) “The synagogue prayers required by their religion must have

a minimum quorum of ten adult males (age thirteen or older), called the

minyan.” (Id. ¶ 104.) Because of this requirement, in conjunction with the

15

executive orders, even though Schonbrun, Perr, and/or Mayerfeld can

attend services if they are part of this quorum, their female and non-adult

male family members are always prevented from attending the services.

(Id. ¶ 108.)

The permittance of drive-in synagogue services is of no help to these

plaintiffs either, because “the minyan must all be present in the same room,

not in various motor vehicles,” and “[m]oreover, any type of operation of a

vehicle is prohibited on the Sabbath, which is the day the main weekly

services take place.” (Id. ¶¶ 109-10.)

Schonbrun is a congregant of Chabad of Marine Park in Brooklyn,

whose Rabbi decided to remain open in mid-March, notwithstanding the

executive orders. (Id. ¶¶ 117-18.) On one occasion, the congregation was

holding a prayer service outside when a police officer arrived and informed

them that they were conducting an “illegal gathering,” despite the fact that

only eight congregants were present, and they “were at least 20 feet apart

from each other.” (Id. ¶¶ 121-22.) When the congregants refused to

disperse, the police officer threatened them with fines and arrest. (Id. ¶

123.) Shortly thereafter, more police officers arrived on the scene, where

they remained until they were certain that all members of the congregation

16

had left the area. (Id. ¶¶ 124-26.)

Because of the executive orders, and the accompanying fear of

arrest and harassment from community activists and the police for violating

them, “Schonbrun and his fellow congregants missed many religious

services, including during Passover.” (Id. ¶ 128.) Further, Schonbrun’s

son has not been able to attend synagogue services for months, as he is

not yet old enough to be part of a minyan. (Id. ¶ 129.) “Schonbrun now

lives in constant fear of police intervention in what remains of Jewish

worship under the ten-person limit.” (Id. ¶ 130.)

Perr is a member of a congregation in the Flatbush-Midwood section

of Brooklyn, where “even before ‘congregate worship’ was prohibited . . .

police were advising members of the Jewish community . . . that

synagogues must close outright.” (Id. ¶¶ 134-35.) Thus, Perr attended

another synagogue, Congregation Zichron Aryeh Leib. (Id. ¶ 136.) Perr

and his fellow congregants were subject to “constant police presence and

interference,” which caused them to live in fear and took from them the

“tranquility of worship.” (Id. ¶¶ 137-39, 144.)

At one point, Perr “observed that [the] synagogue had been locked

and that there was a notice on the door from the Health Department that

17

the synagogue had been closed and that no services could be conducted

there.” (Id. ¶ 141.) On that same day, the police “broke up” a Jewish

funeral that Perr attended, at which social distancing protocols had been

followed. (Id. ¶ 142.) Perr was also unable to hold a Bar Mitzvah for his

son, and his wife and children have been unable to attend synagogue

services since March, due to the executive orders and the aforementioned

quorum requirement. (Id. ¶ 148.)

Mayerfeld mainly attended two different synagogues, Shaarei Zion

and Congregation Bnai Torah, where he and his fellow congregants were

subject to repeated “harassment” and surveillance by the police, allegedly

at the behest of Mayor de Blasio and Governor Cuomo. (Id. ¶¶ 153-57.)

Accordingly, Mayerfeld attempted to hold services in his own backyard.

(Id. ¶ 158.) However, he was subjected to harassment and “bullying” from

his neighbors, which he alleges was “incited by . . . [Mayor] de Blasio, who

vowed to crack down on the Jewish community for failing to observe

[Governor] Cuomo’s ban on religious gatherings.” (Id. ¶¶ 159-60.) As is

the case with Schonbrun and Perr, Mayerfeld’s family has been unable to

attend synagogue services due to the executive orders’ capacity limit and

his religion’s quorum requirement for such services. (Id. ¶¶ 162-63.)

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F. Procedural History

Plaintiffs commenced this action on June 10, 2020 by filing a verified

complaint and an application for a temporary restraining order by order to

show cause. (Dkt. Nos. 1, 2, 7.) The court set an expedited briefing

schedule and a motion return via video conference. (Dkt. No. 8.) At the

conclusion of the return, the court afforded the parties an opportunity to

supplement the record and submit additional argument, which they all did.

(Dkt. Nos. 31-33.)

Plaintiffs allege four enumerated causes of action based on the

circumstances described above: (1) a violation of the Free Exercise Clause

of the First Amendment pursuant to 42 U.S.C. § 1983; (2) a violation of the

First Amendment rights of speech, assembly, and expressive association

conduct pursuant to 42 U.S.C. § 1983; (3) a violation of the Equal

Protection Clause of the Fourteenth Amendment pursuant to 42 U.S.C.

§ 1983; and (4) “Ultra Vires State Action in Violation of Federal Rights.”

(Compl. ¶¶ 164-210.)

III. Standard of Review

A party seeking a preliminary injunction must

demonstrate: (1) a likelihood of success on the merits

or . . . sufficiently serious questions going to the

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merits to make them a fair ground for litigation and a

balance of hardships tipping decidedly in the

plaintiff[s’] favor; (2) a likelihood of irreparable injury

in the absence of an injunction; (3) that the balance of

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) (internal quotation marks and citation omitted).

IV. Discussion

Legal challenges to executive branch responses to the COVID-19

outbreak have been numerous in the wake of the virus. Recently the

Supreme Court weighed in on a California-based limitation for religious

gatherings of “25% of building capacity or a maximum of 100 attendees.”

S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613

(2020). Chief Justice Roberts concurred in a decision to deny injunctive

relief, explaining:

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.” Jacobson v.

Massachusetts, 197 U.S. 11, 38 (1905). When those

officials “undertake[] to act in areas fraught with

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medical and scientific uncertainties," their latitude

"must be especially broad.” Marshall v. United States,

414 U.S. 417, 427 (1974). Where those broad limits

are not exceeded, they should not be subject to

second-guessing by an “unelected federal judiciary,”

which lacks the background, competence, and

expertise to assess public health and is not

accountable to the people. See Garcia v. San

Antonio Metropolitan Transit Authority, 469 U.S. 528,

545 (1985).

Newsom, 140 S. Ct. at 1613-14. Newsom, following the guidance of

Jacobson, instructs courts to refrain from Monday-morning quarterbacking

the other co-equal, elected branches of government when those branches

are responding to difficulties beyond those that are incidental to ordinary

governance. See id. Chief Justice Roberts recognized, however, that

there are “broad limits” which may not be eclipsed. See id. To determine

whether the aforementioned broad limits have been exceeded, which

Newsom did not address, the court turns to Free Exercise Clause

jurisprudence within the framework of the applicable standard of review.

Having carefully reviewed the relevant issues, and with a firm

understanding that the executive branch response to the pandemic has

presented issues with a degree of complexity that is unrivaled in recent

history, it is plain to this court that the broad limits of that executive latitude

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have been exceeded. That is not to say that Governor Cuomo or Mayor de

Blasio have utterly failed in their reaction to COVID-19. To the contrary,

the State of New York, at the moment anyway, is among the best situated

states in terms of infection and mortality rates. While there is more clarity

every day with respect to the best practices for slowing the spread of

COVID-19, there is wide and reasonable disagreement about exactly how

to implement rules and regulations to achieve those ends, and, as is

particularly present in this case, even more so with respect to reopening in

a way that promotes safety, economic viability, and the enjoyment of all the

rights that the people of this country and the State of New York are

guaranteed. As the Chief Justice recognized in Newsom, it is not the

judiciary’s role to second guess the likes of Governor Cuomo or Mayor de

Blasio when it comes to decisions they make in such troubling times, that

is, until those decisions result in the curtailment of fundamental rights

without compelling justification.

A. Success on the Merits4

If neutral and generally applicable, laws challenged as burdening the

4 Plaintiffs argue that each of their four causes of action is likely to succeed on the

merits. (Dkt. No. 2, Attach. 4 at 6-23.) Because each of the prongs is met with respect to

plaintiffs’ Free Exercise Clause claim, the court need not, and does not, analyze the

remainders.

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right to freely exercise religion are presumed valid. See Employment Div.,

Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990); see

also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 546 (1993) (“A law burdening religious practice that is not neutral or

not of general application must undergo the most rigorous of scrutiny.”).

In addressing the constitutional protection for free

exercise of religion, [the Supreme Court’s] cases

establish 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. Neutrality and general

applicability are interrelated, and . . . failure to satisfy

one requirement is a likely indication that the other

has not been satisfied. A law failing to satisfy these

requirements must be justified by a compelling

governmental interest and must be narrowly tailored

to advance that interest.

Lukumi, 508 U.S. at 531-32 (citation omitted).

“Although a law targeting religious beliefs as such is never

permissible, if the object of a law is to infringe upon or restrict practices

because of their religious motivation, the law is not neutral.” Id. at 533

(citations omitted).

To determine the object of a law, [the court] must

begin with its text, for the minimum requirement of

neutrality is that a law not discriminate on its face. A

23

law lacks facial neutrality if it refers to a religious

practice without a secular meaning discernable from

the language or context.

Id.

“The general applicability requirement prohibits the government from

‘in a selective manner impos[ing] burdens only on conduct motivated by

religious belief.’” Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep't

of Health & Mental Hygiene, 763 F.3d 183, 196 (2d Cir. 2014) (quoting

Lukumi, 508 U.S. at 543). “It ‘protect[s] religious observers against

unequal treatment, and inequality [that] results when a legislature decides

that the governmental interests it seeks to advance are worthy of being

pursued only against conduct with a religious motivation.’” Id. at 196-97

(quoting Lukumi, 508 U.S. at 542-43). “While ‘[a]ll laws are selective to

some extent, . . . categories of selection are of paramount concern when a

law has the incidental effect of burdening religious practice.’” Id. at 197

(quoting Lukumi, 508 U.S. at 542). “A law is therefore 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

(citation omitted); see Lukumi, 508 U.S. at 543.

24

“Individualized exemptions are [another] way in which a law can fail

to be generally applicable.” Douglas Laycock & Steven T. Collis, Generally

Applicable Law and the Free Exercise of Religion, 95 Neb. L. Rev. 1, 10

(2016). In Smith, the Supreme Court explained that, “where the State has

in place a system of individual exemptions, it may not refuse to extend that

system to cases of ‘religious hardship’ without compelling reason.” 494

U.S. at 884 (citation omitted). Case law within this Circuit supports the

notion that individualized de facto exemptions can demonstrate that a

challenged law is not generally applicable, and is therefore subject to

heightened scrutiny. See Litzman v. N.Y.C. Police Dep’t, No. 12 Civ. 4681,

2013 WL 6049066, at *3 (S.D.N.Y. Nov. 15, 2013). Along these lines,

when the challenged law does not carve out an exemption on its face, the

history of enforcement is relevant to the existence of an exemption. See

Stormans, Inc. v. Selecky, 854 F. Supp. 2d 925, 956-57 (W.D. Wash.

2012), rev’d on other grounds sub nom. Stormans, Inc. v. Wiesman, 794

F.3d 1064 (9th Cir. 2015), cert. denied, 136 S. Ct. 2433 (2016).

Plaintiffs argue that the limitations and restrictions placed on them by

the executive orders and the Guidance Document (hereinafter collectively

referred to as “challenged laws”) are not neutral or generally applicable,

25

and, therefore, strict scrutiny applies. (Dkt. No. 2, Attach. 4 at 8.) More

specifically, they assert that the challenged laws are not generally

applicable because they are “substantially underinclusive—that is [they]

‘fail[] to prohibit nonreligious conduct that endangers [the government’s

interests] in a similar or greater degree than [the prohibited religious

activity] does.’” (Id. at 9 (citations omitted).) Plaintiffs further claim that

mass race protests have been granted “an individualized exemption” and

that “the government may not refuse to extend that system to cases of

religious hardship without compelling reason.” (Id. at 9-10 (citation

omitted).) That outdoor graduation ceremonies of 150 people or less or

indoor special education services at summer schools without limitation are

allowed also shows the unequal treatment and disfavoring of religion in

plaintiffs’ view. (Dkt. No. 32 at 9.)

Finally, plaintiffs assert that the challenged laws fail strict scrutiny

even though general efforts to prevent the spread of COVID-19 are

“compelling interests of the highest order” because defendants cannot

show that their interest in applying the restrictions to these plaintiffs, who

abide by all social distancing and hygiene rules, is compelling. (Dkt. No. 2,

Attach. 4 at 16-17.)

26

The State argues, in overly-simplistic fashion, that the challenged

laws only incidentally impose a burden on religious exercise, and they are

neutral and generally applicable, and therefore, only rational basis need be

shown, which is self-evident: preventing the spread of COVID-19. (Dkt.

No. 18 at 11-12.) The State was silent with respect to the mass race

protests in its written submissions until it filed a supplemental

memorandum of law following the return on the motion. (Dkt. No. 33,

Attach. 4.)5 In that supplement, the State argues that Governor Cuomo’s

“political speech” cannot support a de facto exemption vis-à-vis the mass

race protests. (Id. at 5.)

The City initially responded with respect to only the ten-person

indoor/outdoor limitation that was applicable in New York City during Phase

1. (Dkt. No. 19, Attach. 7 at 2.) It argues, like the State, that the

challenged laws are neutral and generally applicable, but, unlike the State,

the City initially acknowledged the mass race protests and contended that

5 The State argues, for the first time and in a submission to which plaintiffs have had

no opportunity to respond, that, Governor Cuomo enjoys absolute legislative immunity and, in

an argument much more fully developed than in its original papers, that, because of sovereign

immunity, he and Attorney General James are not proper defendants. (Dkt. No. 33, Attach. 4

at 7-10.) Because it was not raised in time for plaintiffs to offer any response to it, the court will

not consider the legislative immunity argument at this juncture. The same is true of the new

sovereign immunity argument. The State is, of course, free to raise those arguments later in

the litigation.

27

they are not comparable because protests occur outside and religious

activity typically occurs inside. (Dkt. No. 19, Attach. 7 at 7, note 4.) Further

the City asserts, relying on Calvary Chapel Dayton Valley v. Sisolak, 2020

U.S. Dist. LEXIS 103234 (D. Nev. June 11, 2020), that the enforcement of

the challenged laws against protesters creates safety concerns and, absent

clear patterns of unconstitutional selective enforcement, the court should

not second guess the State’s determinations. (Id. at 8.) In its

supplemental submission, the City contends that the orthodox Jewish

plaintiffs “may no longer seek redress for their alleged injuries” because, as

of June 22, New York City has entered Phase 2, which lifts the ten-person

indoor/outdoor limitation and imposes a 25% indoor capacity limitation.

(Dkt. No. 31, Attach. 6 at 1-2). The City also amplifies its contention,

explained for the first time during the motion return, that a de facto

exemption has not been created for mass race protesters. (Id. at 3-6.)

In light of the developments and natural progression of the

challenged laws since the motion return, the restrictions and limitations at

issue are: (1) a 25% indoor capacity limitation for Phases 2 and 3; (2) a

twenty-five-person outdoor gathering limit in Phase 3 locations; and (3) a

ten-person outdoor gathering limit in Phase 1 and 2 locations. And the

28

City’s argument that Schonbrun, Perr, and Mayerfeld “may no longer seek

redress” because their region has gone into Phase 2, (Dkt. No. 31, Attach.

6 at 1-2), is rejected. While it is true that their allegations are tailored to the

ten-person indoor/outdoor limitation that existed when this matter was

commenced, it is readily and reasonably inferable from their allegations

that the 25% indoor capacity limitation would continue to burden their free

exercise of religion.

Assuming, without deciding, that the challenged laws are neutral,

plaintiffs have demonstrated a likelihood of success on the merits with

respect to their free exercise claim because it appears that the challenged

laws are not generally applicable, and that they would fail strict scrutiny.

1. 25% Indoor Capacity Limitation

On its face, the 25% indoor capacity limitation applies only to houses

of worship. See N.Y. Executive Order No. 202.38. Indeed, that limitation is

the only one of its kind in the tangle of executive orders and the Guidance

Document that have been issued in response to the pandemic; in other

words, no other secular entity, save for those that remain closed in their

entirety until Phase 4 or beyond, are limited to only 25% capacity. The

“nonessential businesses,” dubbed “Phase 2 industries” by executive order,

29

that enjoy a 50% capacity limitation are, however, not justifiably different

than houses of worship. (Dkt. No. 32, Attach. 1 ¶ 18.)

For example, offices, retail stores that are not inside of shopping

malls, and salons were permitted to open at 50% capacity beginning in

Phase 2. To a greater or lesser degree, the Phase 2 industries involve the

congregation of people for a length of time. And restaurants in Phase 3

locations are permitted to open at 50% capacity indoors. Restaurant

patrons sit and congregate with family and friends in close proximity for a

lengthy period of time, and have close contact with their hosts and servers.

Face coverings may be removed while seated. (Dkt. No. 32, Attach. 6 at

1.) Additionally, special educational services will be permitted during “the

summer term in school districts” with no indoor capacity limitations.

All of this is to demonstrate that these secular businesses/activities

threaten defendants’ interest in slowing the spread of COVID-19 to a

similar or greater degree than those of plaintiffs’, and demonstrate that the

25% indoor capacity limitation on houses of worship is underinclusive and

triggers strict scrutiny review.6

6 There is also an arguable basis to find a de facto exemption in light of the open

lobbies social media campaign. In light of the court’s conclusion that the 25% indoor capacity

limitation is not generally applicable because it is underinclusive, it need not reach the

individualized exemption argument. Admittedly, the basis of such an argument here is on far

30

2. Twenty-Five-Person Outdoor Limitation in Phase 3; Ten-Person

Outdoor Limitation in Phases 1 and 2

Despite the State’s claim that enforcement power rests with local

authorities in an effort to show that selective enforcement against mass

race protesters is not a de facto exemption imposed by Governor Cuomo

or Attorney General James, (Dkt. No. 33, Attach. 4 at 5-7), Governor

Cuomo clearly has authority over the New York State Police and broad

powers of enforcement, see N.Y. Exec. Law § 223 (explaining that the

superintendent of state police and its members “shall . . . be subject to the

call of the governor and are empowered to co-operate with any other

department of the state or with local authorities”). And, in any case,

Governor Cuomo’s comments, which applauded and encouraged

protesting and discouraged others from violating the outdoor limitations,

likely demonstrate the creation of a de facto exemption.

Mayor de Blasio is a “local authority” with clear enforcement power

and has at his disposal one of the largest municipal police departments in

the world, (Dkt. No. 1, Attach. 1 at 127), and has also actively encouraged

shakier footing, given the lack of acknowledgment or endorsement by defendants, than it is

with respect to the mass race protests discussed below.

31

participation in protests and openly discouraged religious gatherings and

threatened religious worshipers as set forth above. The City’s argument

that temporary selective enforcement of the challenged laws with respect to

mass race protests is a matter of public safety based on the rationale of

Sisolak, 2020 U.S. Dist. LEXIS 103234, would perhaps be legitimate but for

Mayor de Blasio’s simultaneous pro-protest/anti-religious gathering

messages, which clearly undermine the legitimacy of the proffered reason

for what seems to be a clear exemption, no matter the reason. Governor

Cuomo and Mayor de Blasio could have just as easily discouraged

protests, short of condemning their message, in the name of public health

and exercised discretion to suspend enforcement for public safety reasons

instead of encouraging what they knew was a flagrant disregard of the

outdoor limits and social distancing rules. They could have also been

silent. But by acting as they did, Governor Cuomo and Mayor de Blasio

sent a clear message that mass protests are deserving of preferential

treatment.

Another case of individualized exemption seems even more obvious.

The State has specifically authorized outdoor, in-person graduation

ceremonies of no more than 150 people beginning today, June 26. This is

32

an express exemption from the ten- or twenty-five-person outdoor limits

that apply across Phases 1, 2, and 3, and the State must extend a similar

exemption to plaintiffs absent a compelling reason to the contrary. See

Smith, 494 U.S. at 884. And there is nothing materially different about a

graduation ceremony and a religious gathering such that defendants’

justifications for a difference in treatment can be found compelling.

3. Strict Scrutiny

For the reasons articulated in plaintiffs’ memorandum of law,

defendants’ generally-stated compelling interest in controlling the spread of

COVID-19 is inadequate to demonstrate that they have a compelling

interest that is narrowly tailored to these specific plaintiffs. (Dkt. No. 2,

Attach. 4 at 16-18.) The City’s attempt to demonstrate otherwise is

unavailing, (Dkt. No. 31, Attach. 6 at 5-6); and the State has made no

attempt to do so.

B. Irreparable Harm, Balance of Hardships, and Public Interest

Plaintiffs contend that the fear of threatened arrest, prosecution and

fines demonstrate the irreparable harm necessary to support the second

prong of the preliminary injunction standard, and that the deprivation of

First Amendment rights is presumed to amount to irreparably injury. (Dkt.

33

No. 2, Attach. 4 at 23-24.) The State contends that, because plaintiffs are

not being prevented from exercising their religious rights, and, instead, are

only being required to do so in a different way, the presumption of

irreparable harm does not apply. (Dkt. No. 18 at 23-24.) The City appears

to concede that First Amendment violations are sufficient to demonstrate

irreparable injuries for the purpose of a preliminary injunction. (Dkt. No. 19,

Attach. 7 at 1.)

As noted by plaintiffs and the City, the loss of plaintiffs’ free exercise

rights is alone adequate to demonstrate irreparable injury here. See Elrod

v. Burns, 427 U.S. 347, 373 (1976); Bery v. City of New York, 97 F.3d 689,

693 (2d Cir. 1996), cert. denied, 520 U.S. 1251 (1997). Accordingly,

plaintiffs have met their burden in this regard.

Plaintiffs have also satisfied the court with respect to the final two

prongs. (Dkt. No. 2, Attach. 4 at 24-25.) The balance of hardships tips in

plaintiffs’ favor. Indeed, in the absence of an injunction, plaintiffs’ religious

activities will be burdened and continue to be treated less favorably than

comparable secular activities. An injunction, on the other hand, does not

undercut defendants’ interest in controlling the spread of COVID-19,

provided that plaintiffs abide by social distancing guidance.

34

“As for the public interest, treatment of similarly situated entities in

comparable ways serves public health interests at the same time it

preserves bedrock free-exercise guarantees.” Roberts v. Neace, 958 F.3d

409, 416 (6th Cir. 2020); see N.Y. Progress & Prot. PAC v. Walsh, 733

F.3d 483, 488 (2d Cir. 2013).

C. Appropriate Remedy

“District courts have broad authority in crafting equitable remedies

such as injunctions.” Conn. Office of Prot. & Advocacy For Persons With

Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 245 (2d Cir. 2006)

(citations omitted). For the reasons explained above, appropriate injunctive

relief here is a restraint on defendants from enforcement of any indoor

gathering limitations against plaintiffs greater than imposed for Phase 2

industries and restraint from enforcement of any limitation for outdoor

gatherings against plaintiffs. However, the court is unpersuaded that

defendants should be enjoined from the enforcement of the social

distancing rules as set forth in the challenges laws. The court dispenses

with the security requirement of Rule 65(c) of the Federal Rules of Civil

Procedure. See Complete Angler, LLC v. City of Clearwater, Fla., 607 F.

Supp. 2d 1326, 1335 (M.D. Fla. 2009) (“Waiving the bond requirement is

35

particularly appropriate where a plaintiff alleges the infringement of a

fundamental constitutional right.” (citations omitted)).

D. Amicus Curiae

Ahuva Kleinman moves for leave to appear as amicus curiae. (Dkt.

No. 27.) “There is no governing standard, rule or statute prescribing the

procedure for obtaining leave to file an amicus brief in the district court.”

Lehman XS Tr., Series 2006-GP2 v. Greenpoint Mortg. Funding, Inc., No.

12 CIV. 7935, 2014 WL 265784, at *1 (S.D.N.Y. Jan. 23, 2014) (internal

quotation marks, alteration, and citation omitted). Indeed, “[d]istrict courts

ha[ve] broad discretion to permit or deny the appearance of amici curiae in

a given case.” Kearns v. Cuomo, No. 1:19-CV-00902, 2019 WL 5060623,

at *4 (W.D.N.Y. Oct. 9, 2019) (citation omitted). “The usual rationale for

amicus curiae submissions is that they are of aid to the court and offer

insights not available from the parties. Thus, when those purposes are not

served, typically, courts deny motions seeking leave to appear amicus

curiae.” Id. at *5 (internal quotation marks, alterations, and citations

omitted).

The circumstances under which an amicus brief is considered to be

an aid to the court are limited: “An amicus brief should normally be allowed

36

when a party is not represented competently or is not represented at all,

when the amicus has an interest in some other case that may be affected

by the decision in the present case . . . or when the amicus has unique

information or perspective.” Best Payphones, Inc. v. Dobrin, 410 F. Supp.

3d 457, 465 n.3 (E.D.N.Y. 2019) (alterations and citation omitted).

“Otherwise, leave to file an amicus brief should be denied.” Id. (alterations

and citation omitted).

Here, the need for an amicus curiae is minimal to non-existent. The

competence and skill of plaintiffs’ counsel obviates the need for additional

input. Accordingly, while the efforts of the prospective amicus are

admirable, her motion for leave to appear as amicus curiae, (Dkt. No. 27),

is denied.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that plaintiffs’ application for a preliminary injunction

(Dkts. No. 2, 7) is GRANTED; and it is further

ORDERED that defendants are ENJOINED and RESTRAINED as

follows:

(1) from enforcing any indoor gathering limitations against plaintiffs

37

greater than imposed for Phase 2 industries, provided that plaintiffs

follow social distancing requirements as set forth in the applicable

executive orders and guidance; and

(2) from enforcing any limitation for outdoor gatherings provided that

participants in such gatherings follow social distancing requirements

as set forth in the applicable executive orders and guidance; and it is

further

ORDERED that Kleinman’s motion for leave to appear as amicus

curiae (Dkt. No. 27) is DENIED; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

June 26, 2020 ; |. g

Albany, New York ;

‘S District ludge

38