Circuit Judge Park dissent — Agudath Israel v. Cuomo (2d Cir., Nov. 9, 2020) (2d Cir.)

Record facts

U.S. Court of Appeals for the Second Circuit · No. 1:20-cv-04834-KAM-RML · Doc. 20-1 · 2020-11-09 · Docket on CourtListener

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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-transcript-
governor-cuomo-updates-new-yorkers-states-progress-during-1.  
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 
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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. 
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 
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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 
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 
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(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.”). 
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. 
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