Reply brief in support of TRO and preliminary injunction — Agudath Israel v. Cuomo (2d Cir.)

Record facts

UNITED STATES DISTRICT COURT · No. 1:20-cv-04834-KAM-RML · Doc. 13 · 2020-10-09 · Docket on CourtListener

Full text

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, 
vs. 
GOVERNOR ANDREW CUOMO  
Defendant. 
Civil No. 1:20-cv-04834 (KAM) 
REPLY BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR A TEMPORARY 
RESTRAINING ORDER AND PRELIMINARY INJUNCTION 
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 1 of 15 PageID #: 554

2 
Given the press of time, Plaintiffs raise the following four brief points in response to 
Defendant’s opposition.1
First, that Defendant chose to impose these restrictions just two days before three important 
Jewish holidays calls out for immediate relief in time for Plaintiffs to be able to celebrate these  
holidays.  Defendant’s brief entirely ignores the devastating burden his restrictions impose on 
members of the Jewish community, fails to acknowledge that he announced his order only days 
before these sacred religious holidays, and does not explain the timing of his order as it impacts 
the only religious minority singled out in his press conference.  In announcing the restrictions, 
Defendant repeatedly singled out by name only the Orthodox Jewish community.  That targeting 
of a religious minority on the eve of its holidays is reason enough to reject all of Defendant’s 
arguments and allow Plaintiffs to celebrate their holidays this weekend as they have for over 2,000 
years.  See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018); 
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).  According to 
Defendant this morning, “[t]he cluster is predominantly an ultra-orthodox cluster.”  Carl 
Campanile, Cuomo Calls COVID-19 Resurgence an ‘Ultra-Orthodox’ Jewish Problem, NYPost 
(Oct. 9, 2020), https://nypost.com/2020/10/09/gov-cuomo-ny-covid-19-spike-an-ultra-orthodox-
jewish-problem/. 
Again, Defendant singled out “the ultra-Orthodox community” repeatedly, threatening to 
“close the [religious] institutions down” if the community “do[es] not agree to enforce the rules.”  
Schick Decl. Ex. A at 8.  Defendant openly admits that his red-lined restricted zones apply to 
“communities [that] have a large Orthodox population,” Schick Decl. Ex. F at 8, discrimination 
1 Plaintiffs note that Defendant relies extensively on the declaration of Howard Zucker in his 
opposition.  As of 12:50 pm, Defendant has neither filed nor served that declaration on Plaintiffs, 
depriving Plaintiffs the opportunity to review and respond to any of the assertions therein. 
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 2 of 15 PageID #: 555

3 
that is all the more blatant as Defendant has failed to identify the objective metrics that define 
when a neighborhood is placed into a red, orange or yellow zone that restricts religious practice. 
Members of the Jewish faith already are feeling the grave effects of Defendant’s last-
minute restrictions.  Because of Defendant’s strict gathering limitations on houses of worship, 
synagogues must choose which congregants can participate in religious prayer and ritual under 
Defendant’s strict limitations, which render it impossible for all congregants to participate in 
services.  As Rabbi Eytan Feiner of the White Shul announced to his congregants late last night,   
Jews are “hurting beyond words” because of Defendant’s restrictions, as he, like numerous others, 
“must inform all our dear members and mispallelim [worshippers] that our beloved Shul will not 
be available” for more than “a single Minyan of just ten (pre-authorized) people.”  Exhibit A, 
Rabbi Eytan Feiner, Closed White Shul Closes Ahead of New Restrictions Effective Friday 
Morning (Oct. 8, 2020), https://5townscentral.com/2020/10/08/closed-white-shul-closed-ahead-
of-new-restrictions-effective-friday-morning/.   
The singling out of the Orthodox community in announcing the restrictions also has 
spurned other acts of discrimination, as businesses have begun to discriminate against Orthodox 
Jews even outside the restricted zones.  See Exhibit B, THANKS CUOMO: Hasidic Jews Refused 
Entry 
at 
Newburgh, 
NY 
Bowling 
Alley
(Oct. 
8, 
2020), 
https://www.theyeshivaworld.com/news/featured/1907891/thanks-cuomo-hasidic-jews-refused-
entry-at-newburgh-ny-bowling-alley.html. 
Second, even beyond Defendant’s targeting of Orthodox Jews, in particular, and contrary 
to the inaccurate claims in his Opposition, Def. Br. 19, Defendant’s restrictions discriminate on 
their face against all religious practice by imposing certain restrictions on “houses of worship” and 
different rules on secular conduct.  Despite admitting that mass gatherings, in general, present risks 
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 3 of 15 PageID #: 556

4 
to the spread of COVID-19, Defendant singled out “[r]eligious institutions” as “the greatest 
potential” risk and posted pictures of religious gatherings—not even from during the pandemic.  
Schick Decl. Ex. A at 6–7, Ex. F at 8.   
Incredibly, Defendant argues that his restrictions are more favorable to religion than secular 
conduct, Def. Br. 16, but his order proves otherwise.  Defendant’s restrictions afford more 
favorable rules to schools, offices, malls, and other “essential” gatherings where individuals 
congregate and remain in close proximity for extended periods of time.2  Pls. Br. 15–16.  Indeed, 
Defendant’s order fails to define the “essential gatherings” that are exempted from any  
limitations, even in a red zone where houses of worship of any size are limited to occupancy of 
10.  Schick. Decl. Ex. E at 2.   
Defendant wrongly states in his brief that the restrictions exempt only essential businesses, 
Def. Br. 12 n.11, but the plain language of his order restricts only “non-essential gatherings,” 
thereby affording Defendant carte blanche authority to allow an undefined category of gatherings 
in unspecified numbers of individuals if Defendant decides the gathering is “essential.”  Moreover, 
in the “Orange Zone” houses of worship are limited to 25 individuals, while offices, malls, and 
retail stores can open at 50% of capacity.  Pls. Br. 15–16.  And schools can open at 100% capacity 
in the “Yellow Zone”—a much more favorable rule than the 50% capacity imposed on houses of 
worship.  Pls. Br. 15.  Such permitted secular conduct that “threaten defendants’ interest in slowing 
the spread of COVID-19 to a similar or greater degree than those of” houses of worship 
2 Association of Jewish Camp Operators v. Cuomo, 2020 U.S. Dist. LEXIS 117765 (N.D.N.Y. 
July 6, 2020), involved a distinguishable challenge to restrictions to overnight camps.  Defendant’s 
restrictions on their face applied equally to religious and non-religious camps, and the court 
decided permitted secular activity was dissimilar to overnight camps, which involve close sleeping 
quarters.   
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 4 of 15 PageID #: 557

5 
demonstrates that, as in Soos, 2020 U.S. Dist. LEXIS 111808, *29–30, Defendant’s restrictions 
discriminate on the basis of religious practice. 
Third, Plaintiffs wrongly argue that Jacobson v. Commonwealth of Massachusetts, 197 
U.S. 11 (1905), and South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), do 
not permit this Court to invalidate discriminatory restrictions on religious practice, including 
ones—like those here—designed to target a religious minority.  
Jacobson did not address a Free Exercise Clause challenge at all and does not free the Court 
from deciding whether the statute is discriminatory against religious practice.  Numerous courts 
considering the issue have applied traditional First Amendment scrutiny to such challenges, and a 
court must determine whether a restriction discriminates against religion.  See Roberts v. Neace, 
958 F.3d 409, 413–16 (6th Cir. 2020); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 
(6th Cir. 2020); Soos v. Cuomo, 2020 U.S. Dist. LEXIS 111808, *29–30 (N.D.N.Y. June 26, 2020); 
On Fire Christian Ctr. v. Fischer, 2020 U.S. Dist. LEXIS 65924 (W.D. Ky. Apr. 11, 2020).   
Nor is South Bay “dispositive,” Def. Br. 10, as Defendant wrongly argues.  The case was 
before the Court on a request for injunctive relief after the district court refused to enjoin the 
challenged conduct.  140 S. Ct. at 1613–14.  As the Chief Justice emphasized in his concurring 
opinion, the Court’s decision in South Bay was based upon the highly deferential approach the 
Supreme Court takes to district court decisions that deny a motion for a preliminary injunction: 
“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.” Id. (citation omitted) (emphasis 
added).  The present case is the moment to which the Supreme Court said it would defer: a decision 
by a “lower court” whether to give relief.   
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 5 of 15 PageID #: 558

6 
Further, the discrimination here is far clearer than in South Bay, such that the decision by 
the South Bay district court should not guide this Court’s analysis.  As explained in Plaintiffs’ brief 
and above, Defendant’s actions here discriminate against religious gatherings vis-à-vis the 
undefined category of “essential gatherings.”  Pls. Br. 16; Schick Decl. Ex. E at 2.  Nor was the 
explicit singling out of religion in imposing restrictions at issue in South Bay, as is present here 
and is discussed further below.3
Finally, Defendant’s discriminatory restrictions fail strict scrutiny; indeed, they are so 
irrational that they would fail even Jacobson’s “arbitrary and oppressive” standard, if that standard 
applied here.  Defendant has shown no criteria whatsoever for the metrics that trigger his 
gerrymandered zones that would even begin to prove that the restrictions are narrowly tailored.  
Nor has Defendant even attempted to set forth evidence that Plaintiffs’ synagogues have not 
complied with his existing gathering and health regulations or that Plaintiffs have caused spread 
of COVID-19.  The only evidence proves the opposite.  Pls. Br. 11.  Defendant’s massively 
underinclusive restrictions favoring comparable secular activity show that less restrictive means 
3 Defendant also erroneously relies upon Calvary Chapel Dayton Valley v. Sisolak, 2020 WL 
4260438 (D. Nev. June 11, 2020), but that case is inapplicable.  In Calvary Chapel, the plaintiff 
challenged an order that limited in-person church services to 50 persons or less, the same capacity 
limitation that applied to all public gatherings in any indoor or outdoor spaces and movie theaters, 
while casinos were permitted to operate at 50% capacity.  Id. at *1.  But casinos also faced 
substantial government-issued restrictions and limitations “in addition to” the requirements of the 
Emergency Directive.  Id. at *3.  On this basis, the court concluded the order was “neutral and 
generally applicable,” and did not treat secular activity more favorably than religious services.  Id.
Here, Defendant’s order omits from its regulatory sphere any “[ ]essential gatherings,” instead 
limiting only “[n]on-essential gatherings” in each of the “zones.”  Schick Decl. E at 2.  Thus, by 
its very text the order permits open-ended “essential gatherings” even in areas where religious 
observers are severely regulated.  The order never explains why it “permit[s] people who practice 
social distancing and good hygiene in one place but not another for similar lengths of time,” 
Roberts, 958 F.3d at 416, and such a distinction disfavoring religion is plainly contrary to the First 
Amendment.  Therefore, unlike in Calvary Chapel, where Nevada’s officials at least arguably 
placed religious practice and secular activity on equal footing, Defendant’s discrimination here 
merits this Court’s entering a temporary restraining order. 
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 6 of 15 PageID #: 559

7 
are available to curb the spread of COVID-19 than an arbitrary cap on the number of protectioners 
allowed to attend religious services.  Defendant’s patent targeting religious conduct for restriction 
smacks of arbitrariness and oppression, which is particularly true given Defendant’s admission 
that such restrictions purportedly are necessary because of the government’s lack of enforcement 
of prior laws, reasoning that “[m]oving forward, I’m not going to pass more laws that are not 
enforced.”  Schick Decl. Ex. F at 7.  Draconian shutdown measures against religious institutions 
cannot possibly be narrowly tailored, and are arbitrary and oppressive, where even Defendant 
concedes less restrictive means are available but may not have worked because of the 
government’s (and not Plaintiffs’) inaction. 
This 9th 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 
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 7 of 15 PageID #: 560

EXHIBIT A
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 8 of 15 PageID #: 561

10/9/2020
CLOSED: White Shul Closes Ahead of New Restrictions Effective Friday Morning | 5 Towns Central
https://5townscentral.com/2020/10/08/closed-white-shul-closed-ahead-of-new-restrictions-effective-friday-morning
1/3
CLOSED: White Shul Closes Ahead of New Restrictions
Effective Friday Morning
Hoshana Rabba 5781/Erev Shabbos and Yom Tov, October 8, 2020
 
Lichvod Dearest White Shul Members, amu”sh:
Shalom U’vrachah, Good Evening, and wishing you all a Gutten Kvittel this Hoshana Rabba.
We sincerely apologize for the delay in sending this message.
Times are extremely difficult these days, and the governor’s recent severe restrictions are
weighing on us quite heavily. Rabbonim have been putting in a great deal of time and
energy (and tefillos…) to deal with the many issues at hand. While we are davening
fervently that we hear of a favorable ruling tomorrow afternoon (for a temporary
restraining order) in response to Agudath Israel of America’s request, we must also deal
appropriately and responsibly with the present reality on hand.
We at the White Shul- along with other Rabbonim- feel strongly that it is incumbent upon us
to adhere to the current guidelines issued by the governor– which sadly mandate that only
a single Minyan of just ten people is permitted in our building at any one time.
Compounding the difficulty is the governor’s current restriction that only one small Minyan
is allowed on the entire Shul premises, thereby disallowing use of the outdoor davening
areas as well.
By  5TC Team  - October 8, 2020
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 9 of 15 PageID #: 562

10/9/2020
CLOSED: White Shul Closes Ahead of New Restrictions Effective Friday Morning | 5 Towns Central
https://5townscentral.com/2020/10/08/closed-white-shul-closed-ahead-of-new-restrictions-effective-friday-morning
2/3
To summarize our paramount concerns and the need for full compliance:
1. We must do our part in helping stem the current uptick, flatten the curve, and keep
everyone safe and healthy so Yeshivos and Shuls can all fully open soon– and safely
remain open.
2. We must do our absolute utmost to prevent any slight Chillul Hashem and also preclude
any and all possible ei’vah, any animosity, from all those scrutinizing the actions and
behavior of Orthodox Jews at this time.
3. We have already been recently visited by officials from the Department of Health (DOH),
and have been warned that both the mayor and governor will likely be sending
representatives to our neighborhood– with a threat of imposing fines up to $15,000 for
any violations of the governor’s executive order. In addition to the primary concerns of
preventing any Chillul Hashem and not arousing any animosity, we are also של ממונן על חס
ישראל.
Even having to pen this e-mail pains us immeasurably. We are hurting beyond
words. Hashem Yerachem Aleinu. We most certainly must continue to daven as passionately
as possible for a yeshuah gedolah bi’karov and a quick end to all our tzaros and difficulties.
But we also must do that which we feel is the right thing to do at this time, and work
endlessly to always be ולעולם תמיד שמים שם מקדש.
In light of the above, we sadly must share with you the following:
Beginning TOMORROW morning, Hoshana Rabba Shacharis, there will only be a
single Minyan of just ten (pre-authorized) people taking place on our
Shul’s premises. We are still working on details, but must inform all our dear members
and mispallelim that our beloved Shul will not be available for any additional Minyanim
tomorrow and until further notice.   Most unfortunately, there will not be regular
Minyanim on the Shul grounds at this time.
Those individuals who need to retrieve Tallis/Tefillin, Seforim, or any other personal
belongings, please feel free to enter the Shul for the sole purpose of retrieving those
items, but please ensure there are no more than five people inside the Shul at any time.
We remind everyone that masks (covering both mouth and nose) must be worn
whenever one enters the Shul building, and we reiterate our previous strong
recommendation for all to don a mask anytime you are in any public area.
We daven and ask for your understanding, patience, and compliance, and implore you to
seek other available options for Tefillah B’Tzibbur. One may daven at a safe (mask
mandatory) and legal outdoor Minyan (backyard/porch) at this time, and indeed one may
daven B’yechidus if Tefillah B’Tzibbur proves too difficult or impractical at this junction.
May HaKB”H answer all of our heartfelt tefillos and bakashos in the very near future, and
may we merit to share only besuros tovos in this and all areas henceforth ה”אי.
We will certainly keep you updated and informed of any important details and changes as
they arise. Please always feel free and comfortable to contact either one of us for questions
or Chizzuk— it is our pleasure to assist in any way possible.
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 10 of 15 PageID #: 563

10/9/2020
CLOSED: White Shul Closes Ahead of New Restrictions Effective Friday Morning | 5 Towns Central
https://5townscentral.com/2020/10/08/closed-white-shul-closed-ahead-of-new-restrictions-effective-friday-morning
3/3
With warmest regards and very best wishes for a Gut Kvittel and only Kol Tuv always,
Rabbi Eytan Feiner
Rabbi Motti Neuburger
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 11 of 15 PageID #: 564

EXHIBIT B
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 12 of 15 PageID #: 565

10/9/2020
THANKS CUOMO: Hasidic Jews Refused Entry at Newburgh, NY Bowling Alley - The Yeshiva World
https://www.theyeshivaworld.com/news/featured/1907891/thanks-cuomo-hasidic-jews-refused-entry-at-newburgh-ny-bowling-alley.html
1/3
THANKS CUOMO: Hasidic Jews Refused Entry at
Newburgh, NY Bowling Alley
Special to YWN News:
The repercussions of NY Governor Cuomo’s verbal assault Wednesday on the Hasidic and
other Orthodox Jewish communities are already beginning to appear.
A Newburg based bowling alley refused service to a number of Orthodox Jewish families on
Wednesday afternoon. This was less than 24 hours after the governor’s controversial speech
and draconian measures limiting synagogue services to ten people per synagogue in what
he termed “red zones.”
Approximately twenty un-related and un-connected families tried to go bowling when rain
forced them to change their Chol HaMoed plans. Slightly after 2:15PM near Newburgh, NY,
it began to rain.
One family related their version of what had transpired:
“We had planned a hike for today, when we got to the jump off point of the hike it started to
raining,” the father in one group reported.
October 8, 2020 1:18 am
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 13 of 15 PageID #: 566

10/9/2020
THANKS CUOMO: Hasidic Jews Refused Entry at Newburgh, NY Bowling Alley - The Yeshiva World
https://www.theyeshivaworld.com/news/featured/1907891/thanks-cuomo-hasidic-jews-refused-entry-at-newburgh-ny-bowling-alley.html
2/3
They called a nearby bowling alley called Pat Tarsio Lanes at about 2:30 PM and were told
that there were plenty of lanes open and that they should come down. They arrived
between 3:00 and 3:15.
The bowling alley is located at 173 South Plank Road (Rt. 52) in Newburgh.
According to the family, when they arrived and staff members saw that they were orthodox
Jews, they were refused lanes.
“There must have been twenty families. Every single person was wearing a mask, and we
were socially distancing,” the father said.
Upon their arrival at Pat Tarsio Lanes, the family met some Hasidic families who warned
them what would happen.
“They will tell you that lanes are not available because they have leagues at 5:00 PM.  We
also called beforehand, and were told to come down and that there were plenty of lanes.
“If the facts of what is alleged are true, it would be very troubling if this bowling alley was
discriminating against Orthodox Jews who merely wished to bowl.  This calls for an
explanation by the owners as to why they were initially given permission to come and
refused later on,” remarked Charles Miller, a New York City-based attorney.
Pat Tarsio Lanes has been open for over sixty years. Their website states: Originally
constructed in 1959 by Pat Tarsio Sr., and Lou “Wrongfoot Louie” Campi, Campi-Tarsio
Lanes quickly became a household name. Soon thereafter, Pat took sole ownership of the
lanes, which was then re-named “Pat Tarsio Lanes.” Located on route 52 in Newburgh, NY,
this local spot developed into a neighborhood favorite for serious bowlers and amateurs
alike.
And now, over 50 years later, his sons Tony and Pat continue to operate Tarsio lanes,
preserving the same core values it was built on and valuing their customers as friends.”
A phone call made to Pat Tarsio Lanes went unanswered.
JOIN THE TENS OF THOUSANDS WHO ALREADY ARE ALERTED OF BREAKING NEWS
LIKE THIS IN LIVE TIME:
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 14 of 15 PageID #: 567

10/9/2020
THANKS CUOMO: Hasidic Jews Refused Entry at Newburgh, NY Bowling Alley - The Yeshiva World
https://www.theyeshivaworld.com/news/featured/1907891/thanks-cuomo-hasidic-jews-refused-entry-at-newburgh-ny-bowling-alley.html
3/3
YWN WHATSAPP STATUS UPDATES: CLICK HERE to join the YWN WhatsApp
Status.
YWN WHATSAPP GROUPS: CLICK HERE to be dded to an official YWN WhatsApp
Group.
(YWN World Headquarters – NYC)
Case 1:20-cv-04834-KAM-RML   Document 13   Filed 10/09/20   Page 15 of 15 PageID #: 568

File and source

File

gov.uscourts.nyed.454069.13.0_1.pdf

Size

257,389 bytes

SHA-256

537b399e4be3450db53571220152b0b20bcd04a0758ac3a624f796478b1bb980

Our copy

gov.uscourts.nyed.454069.13.0_1.pdf

Original

archive.org