Court filing
Second Circuit remand judgment (Jan. 19, 2021) — Agudath Israel v. Cuomo (2d Cir.)
Filed January 19, 2021 in Agudath Israel of America v. Cuomo; one of 37 filings from this case.
Record facts
| Court | U.S. Court of Appeals for the Second Circuit |
|---|---|
| Filed | 2021-01-19 |
U.S. Court of Appeals for the Second Circuit · No. 1:20-cv-04834-KAM-RML · Doc. 29 · 2021-01-19 · Docket on CourtListener
Full text
UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
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 28th day
of December, two thousand twenty.
Before:
Debra Ann Livingston,
Chief Judge,
Michael H. Park,
Steven J. Menashi,
Circuit Judges.
________________________________
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.
JUDGMENT
Docket No. 20-3572
________________________________
The appeal in the above captioned case from an order of the United States District Court for the
Eastern District of New York was argued on the district court’s record and the parties’ briefs. Upon
consideration thereof,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the district court order is
REVERSED to the extent that it denied Agudath Israel’s motion for a preliminary injunction as to the
Order’s fixed capacity limits, and the cause is REMANDED to the district court with directions to grant a
preliminary injunction against enforcement of those limits and for further proceedings consistent with this
Court’s opinion. The district court’s order is VACATED to the extent that it denied a preliminary
injunction against enforcement of the Order’s 25% and 33% capacity limits on houses of worship.
For the Court:
Catherine O’Hagan Wolfe,
Clerk of Court
MANDATE
MANDATE ISSUED ON 01/19/2021
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Filed:
EDNY, Clerks' Office
January 19, 2021
A True Copy
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20-3572; 20-3590
Agudath Israel of America v. Cuomo; Roman Catholic Diocese of Brooklyn v. Cuomo
1
United States Court of Appeals
2
for the Second Circuit
3
4
August Term, 2020
5
6
(Argued: December 18, 2020
Decided: December 28, 2020)
7
8
Docket Nos. 20-3572; 20-3590
9
_____________________________________
10
11
AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF
12
KEW GARDEN HILLS, AGUDATH ISRAEL OF MADISON,
13
AGUDATH ISRAEL OF BAYSWATER, RABBI YISROEL REISMAN,
14
RABBI MENACHEM FEIFER, STEVEN SAPHIRSTEIN,
15
Plaintiffs-Appellants,
16
v.
17
18
ANDREW M. CUOMO, GOVERNOR OF THE STATE OF NEW YORK,
19
IN HIS OFFICIAL CAPACITY,
20
Defendant-Appellee.
21
_____________________________________
22
23
THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK,
24
Plaintiff-Appellant,
25
v.
26
27
GOVERNOR ANDREW M. CUOMO, IN HIS OFFICIAL CAPACITY,
28
Defendant-Appellee.
29
_____________________________________
30
31
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2
Before:
1
2
LIVINGSTON, Chief Judge, PARK and MENASHI, Circuit Judges.
3
4
On October 6, 2020, in response to an increase in COVID-19 cases, Governor
5
Cuomo issued Executive Order 202.68 (the “Order”), which, among other things,
6
limits the maximum allowable occupancy in “houses of worship” in certain zones
7
to 10 or 25 people. Appellants Roman Catholic Diocese of Brooklyn (the
8
“Diocese”) and Agudath Israel of America (“Agudath Israel”) seek to enjoin the
9
Governor from enforcing the 10- and 25-person capacity limits. They argue the
10
Order violates the Free Exercise Clause of the First Amendment. The United States
11
District Court for the Eastern District of New York (Matsumoto, J., & Garaufis, J.)
12
denied their motions for a preliminary injunction.
13
14
Appellants moved for injunctions pending appeal, which a divided motions
15
panel of this Court denied. Appellants then sought injunctive relief from the
16
United States Supreme Court, which granted writs of injunction prohibiting the
17
Governor from enforcing the Order’s 10- and 25-person capacity limits pending
18
disposition of this appeal. See Roman Cath. Diocese of Brooklyn v. Cuomo, 141
19
S. Ct. 63 (2020); Agudath Israel v. Cuomo, No. 20A90, 2020 WL 6954120 (U.S. Nov.
20
25, 2020). The Supreme Court found that Appellants were likely to succeed on the
21
merits, applying strict scrutiny to the Order because it is not neutral on its face and
22
imposes greater restrictions on religious activities than on other activities the
23
Governor considers “essential.”
24
25
In light of the Supreme Court’s decision, we hold that the Order’s regulation
26
of “houses of worship” is subject to strict scrutiny and that its fixed capacity limits
27
are not narrowly tailored to stem the spread of COVID-19. Appellants have
28
established irreparable harm caused by the fixed capacity limits, and the public
29
interest favors granting injunctive relief.
30
31
With respect to the Diocese’s appeal, No. 20-3590, we REVERSE and
32
REMAND with directions for the district court to issue a preliminary injunction
33
prohibiting the Governor from enforcing the Order’s 10- and 25-person capacity
34
limits. With respect to Agudath Israel’s appeal, No. 20-3572, we REVERSE in part
35
and REMAND for the issuance of a preliminary injunction as to those fixed
36
capacity limits. We also VACATE the district court’s denial of Agudath Israel’s
37
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3
motion for a preliminary injunction as to the Order’s 25% and 33% capacity limits,
1
and REMAND for the district court to determine in the first instance whether those
2
limits should be enjoined in light of the Supreme Court’s decision and this opinion.
3
4
AVI SCHICK (W. Alex Smith, Misha Tseytlin,
5
on the brief), Troutman Pepper Hamilton
6
Sanders LLP, New York, NY & Chicago, IL,
7
for Plaintiffs-Appellants in 20-3572.
8
9
RANDY M. MASTRO (Akiva Shapiro, William
10
J. Moccia, Lee R. Crain, on the brief), Gibson,
11
Dunn & Crutcher LLP, New York, NY, for
12
Plaintiff-Appellant in 20-3590.
13
14
BRIAN D. GINSBERG (Barbara D. Underwood,
15
Solicitor General, Andrea Oser, Deputy
16
Solicitor General, Dustin J. Brockner,
17
Assistant Solicitor General, on the brief), for
18
Letitia James, Attorney General of the State
19
of New York, Albany, NY, for Defendant-
20
Appellee in 20-3572 & 20-3590.
21
22
PARK, Circuit Judge:
23
In response to the COVID-19 pandemic, the Governor of New York issued
24
an executive order limiting the maximum allowable occupancy in “houses of
25
worship” in certain “zones” to 10 or 25 people. Other businesses that the Governor
26
considers to be “essential,” however, face no such restrictions. Appellants Roman
27
Catholic Diocese of Brooklyn (the “Diocese”) and Agudath Israel of America
28
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4
(“Agudath Israel”) seek to enjoin the Governor from enforcing the capacity limits,
1
which they allege violate the Free Exercise Clause of the First Amendment.
2
The Supreme Court already found that Appellants have made “a strong
3
showing” that their claim is likely to prevail. See Roman Cath. Diocese of Brooklyn v.
4
Cuomo, 141 S. Ct. 63, 66 (2020). We agree. The Governor’s order is subject to strict
5
scrutiny because it is not neutral on its face and imposes greater restrictions on
6
religious activities than on secular ones. We thus REVERSE and REMAND in part,
7
directing the district courts to enjoin the Governor from enforcing the Order’s 10-
8
and 25-person capacity limits. We VACATE and REMAND in part for the district
9
court to determine in the first instance whether the 25% and 33% capacity limits
10
can satisfy strict scrutiny.
11
I. BACKGROUND
12
A.
COVID-19 and the Governor’s Response
13
More than 36,000 New Yorkers have died from COVID-19, and New York
14
has had the second-highest number of deaths per capita of any state. 1 On
15
March 7, 2020, Governor Cuomo declared a disaster emergency in the State, which
16
allows him to exercise extraordinary executive powers. See N.Y. Exec. Law § 28.
17
1 United States COVID-19 Cases & Deaths by State, Ctrs. for Disease Control & Prevention,
https://covid.cdc.gov/covid-data-tracker (updated Dec. 26, 2020).
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5
He can “temporarily suspend any statute, local law, ordinance, or orders, rules or
1
regulations, or parts thereof, of any agency,” and can “issue any directive . . .
2
necessary to cope with the disaster.” Id. § 29-a. Suspensions and directives under
3
this law expire after 30 days, but the Governor may renew them an unlimited
4
number of times. Id. The legislature of New York can terminate suspensions and
5
directives “by concurrent resolution,” but the Governor’s actions pursuant to
6
Executive Law § 29-a do not otherwise require legislative consultation or approval.
7
Id.
8
Governors have historically exercised this emergency authority in a limited
9
and localized manner, most often in response to natural disasters such as severe
10
storms or flooding.2 Governor Cuomo’s executive orders during the COVID-19
11
pandemic, however, have been unprecedented in their number, breadth, and
12
duration. From March to December 2020, he has issued almost 90 executive orders
13
2 See, e.g., N.Y. Exec. Order 195 (May 20, 2019) (declaring disaster emergency in specified
counties due to “high water levels on Lake Ontario and the St. Lawrence River . . . causing the
potential for lakeshore flooding, widespread erosion, and water damage”); N.Y. Exec. Order 193
(Jan. 19, 2019) (same, due to a “severe winter storm”).
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6
relating to the pandemic.3 Those orders affect nearly every aspect of life in the
1
State, including restrictions on activities like private gatherings and travel.4
2
B.
Executive Order 202.68
3
In response to a rise in COVID-19 cases in certain “hot spots” in the State,
4
on October 6, 2020, the Governor issued Executive Order 202.68 (the “Order”), the
5
source of the restrictions challenged here.5 The Order authorizes the New York
6
State Department of Health to “determine areas in the State that require enhanced
7
public health restrictions,” classifying those areas as red, orange, or yellow zones,
8
and imposes zone-specific restrictions on various activities.
9
In red zones, the Order prohibits all “[n]on-essential gatherings,” requires
10
all “non-essential businesses” to “reduce in-person workforce by 100%,” and
11
allows restaurants to remain open “for takeout or delivery only.” The Order
12
3 See Executive Orders, Off. of the Governor, https://www.governor.ny.gov/executive-
orders (last visited Dec. 27, 2020). By comparison, the Governor averaged around 35 executive
orders per year in the preceding five years. See id.
4 See, e.g., N.Y. Exec. Order 202.6 (Mar. 18, 2020) (ordering certain employers to “reduce
[their] in-person workforce at any work locations by 50%”); N.Y. Exec Order 205.2 (Oct. 31, 2020)
(requiring certain “travelers entering New York” from a non-contiguous state to “quarantine for
a period of 14 days”).
5 Executive Order 202.68 was in effect through November 5, 2020. On November 3, 2020,
the Governor extended the restrictions contained in Executive Order 202.68 through December 3,
2020. See N.Y. Exec. Order 202.72 (Nov. 3, 2020). And on December 2, 2020, the Governor again
extended the restrictions through January 1, 2021. See N.Y. Exec. Order 202.79 (Dec. 2, 2020).
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7
imposes no additional restrictions or limitations on other businesses or gatherings,
1
however, and schools may continue in-person instruction.6 The Order specifies
2
only one other category of entities in red zones: “[H]ouses of worship,” which are
3
subject to a capacity limit of “25% of maximum occupancy or 10 people, whichever
4
is fewer.”
5
In orange zones, the Order limits “[n]on-essential gatherings” to 10 people
6
and directs the closure of “certain non-essential businesses, for which there is a
7
higher risk associated with the transmission of the COVID-19 virus,” such as gyms
8
and tattoo parlors. Restaurants may “provide outdoor service,” all other
9
businesses are again free to operate without additional restrictions other than
10
those imposed by previous orders, and schools may remain open for in-person
11
instruction, subject again to testing requirements. Again, “houses of worship” in
12
orange zones are separately identified and subject to a capacity limit of “33% of
13
maximum occupancy or 25 people, whichever is fewer.”
14
6 “Essential” businesses are subject to a 50% occupancy cap under earlier imposed
restrictions. The Order originally directed the closure of schools in red and orange zones, but
was later modified to allow schools to “conduct in-person instruction . . . subject to compliance
with guidance and directives of the Department of Health,” including rigorous testing
requirements. See N.Y. Exec. Order 202.79 (Dec. 2, 2020).
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8
In yellow zones, which are not at issue here, the Order limits “[n]on-
1
essential gatherings” to “no more than 25 people.” Indoor dining is permitted at
2
restaurants, and schools remain open. No additional restrictions are imposed on
3
any businesses, whether “essential” or “non-essential.” Once more, however,
4
“houses of worship” are limited to “50% of [their] maximum occupancy.”7
5
By its terms, the Order does not apply to “essential” businesses, which State
6
guidance describes as those “providing products or services that are required to
7
maintain the health, welfare and safety of the citizens of New York State.”8 This
8
category includes not only grocery stores and hospitals, but also many businesses
9
with more questionable connections to “health, welfare, and safety”—including
10
liquor stores, pet shops, and financial institutions providing “services related to
11
financial markets.”9 The Governor has neither explained the process by which he
12
deemed some businesses “essential” nor identified evidence supporting the
13
classifications. Importantly, the Governor has not asserted that his categorization
14
7 In yellow zones, other executive orders and regulations impose a similar 50% occupancy
cap on all essential and non-essential businesses that is not apparent on the face of the Order.
8 Frequently Asked Questions for Determining Whether a Business Is Subject to a Workforce
Reduction Under Recent Executive Order Enacted to Address COVID-19 Outbreak, Empire State Dev.,
https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_032220.pdf.
9 See Essential Business Guidance Related to Determining Whether a Business Enterprise Is
Subject to a Workforce Reduction Under Executive Order 202.68, Empire State Dev.,
https://esd.ny.gov/ny-cluster-action-initiative-guidance (updated Dec. 15, 2020).
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9
of businesses as “essential” or “non-essential” was based on any assessment of
1
COVID-19 transmission risk.
2
Before issuing the Order, the Governor made public statements indicating
3
that the restrictions were motivated in part by concerns about religious gatherings.
4
For example, he noted that the source of the first coronavirus hot spot in New York
5
“was an Orthodox Jewish man who went to a temple” and observed that
6
“Orthodox Jewish gatherings often are very, very large and we’ve seen what one
7
person can do in a group.”10 The Governor then said that he would be meeting
8
with members of the “ultra-Orthodox [Jewish] community,” and if they would
9
“not agree to enforce the rules, then we’ll close the institutions down.” Id. One
10
day later, he issued the Order.
11
Three days after issuing the Order, the Governor explained that it addresses
12
“a predominantly ultra-orthodox cluster.”11 Five days later, he said the State was
13
“having issues in the Orthodox Jewish community in New York, where because
14
10 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.
11 Governor Cuomo Is a Guest on CNN Newsroom with Poppy Harlow and Jim Sciutto, Off. of
the Governor (Oct. 9, 2020), https://www.governor.ny.gov/news/audio-rush-transcript-governor-
cuomo-guest-cnn-newsroom-poppy-harlow-and-jim-sciutto.
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10
of their religious practices, . . . we’re seeing a spread.”12 He said that state-level
1
enforcement was necessary because the “ultra-Orthodox communities . . . are also
2
very politically powerful.”13
3
The Order was not accompanied by any contemporaneous explanation of
4
its specific limits on houses of worship. In this litigation, however, the Governor
5
offered declarations from Dr. Howard A. Zucker, Commissioner of the State
6
Department of Health, and Dr. Debra S. Blog, Director of the Department of
7
Health’s Division of Epidemiology. The declarations explained that “large
8
gatherings present the greatest risk for rapid and widespread transmission of the
9
virus in a community,” citing reports of “super-spreader events” at a church in
10
Arkansas, a wedding in Maine, a religious service in India, and a choir practice in
11
Washington. Joint App’x, No. 20-3590, at 312–18. Comparing religious gatherings
12
to restaurants, the declarations also asserted that “the idea [of a religious service]
13
is a group of people coming together as a community to interact and pray
14
12 Appellants’ Br., No. 20-3572, at 9–10 (quoting Mairead McArdle, Cuomo Says ‘Religious
Practices’ of Orthodox Jews Causing Virus to Spread in New York City, National Review (Oct. 14, 2020),
https://www.nationalreview.com/news/cuomo-says-religious-practices-of-orthodox-jews-
causing-virus-to-spread-in-new-york-city).
13 Governor Cuomo Announces State Will Withhold Funds for Localities and Schools in
COVID-19 Cluster Zones If They Fail to Enforce Public Health Law, Off. of the Governor (Oct. 14,
2020),
https://www.governor.ny.gov/news/audio-rush-transcript-governor-cuomo-announces-
state-will-withhold-funds-localities-and-schools.
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11
together,” that “[g]enerally, the congregants are arriving and leaving at the same
1
time and are together over an extended period of time,” and that “[t]his type of
2
close interaction, while having deep meaning for the congregants, poses a higher
3
risk of transmission of the virus.” Id. at 318. The declarations did not purport to
4
assess the transmission risk of religious worship based on any data, much less to
5
compare religious worship with “essential” activities, and they did not explain
6
how the Governor arrived at the specific numerical and percentage capacity
7
limitations in the Order.
8
The Governor initially designated restricted zones in Brooklyn and Queens
9
in New York City, as well as in Broome, Orange, and Rockland counties. Since
10
issuing the Order in October, the Governor has changed the zone designations at
11
least nine times.14
12
C.
Parties
13
1.
Roman Catholic Diocese of Brooklyn
14
The Diocese of Brooklyn is a Roman Catholic diocese with 210 churches in
15
Brooklyn and Queens. In 2019, the Diocese held approximately 1,000 Masses each
16
Sunday, with an average weekly attendance of almost 230,000.
17
14 The Governor announced changes to zone boundaries on October 21 and 28;
November 6, 9, 11, 18, 19, and 23; and December 14.
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12
Since March 2020, the Diocese has taken various precautions to protect its
1
parishioners and the community. On March 16, 2020—before any government
2
lockdowns were imposed in New York—the Diocese canceled all public Masses.
3
Three days later, it ordered a complete shutdown of all of its churches, effective
4
on March 20. During the shutdown, the Diocese convened a commission to
5
prepare for an eventual re-opening. In consultation with medical professionals,
6
the commission developed a set of safety protocols, including regular cleaning of
7
churches, limited hours, and masking and distancing requirements.
8
In June 2020, the Diocese began to re-open for in-person Mass, beginning
9
with weekday services and expanding to weekend Masses in early July. Since re-
10
opening, the Diocese has required each of its churches to abide by the safety
11
protocols developed by its commission, and Diocesan officials have inspected
12
services to ensure compliance. In addition, the Diocese voluntarily limited all
13
church services to 25% of building capacity, maintaining this restriction even after
14
the State increased the statewide limit for gatherings beyond 25%.
15
The Diocese asserts that its safety protocols have been successful, and the
16
State’s witness in the evidentiary hearing below acknowledged that he was
17
unaware of any COVID-19 outbreaks associated with churches in the Diocese.
18
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13
2.
Agudath Israel
1
Agudath Israel of America is a national organization advocating for the
2
Orthodox Jewish community in the United States. There are approximately 70
3
synagogues affiliated with Agudath Israel of America in New York, including
4
three of the appellants here.15
5
Like the Diocese, Agudath Israel has voluntarily instituted safety measures
6
to protect congregants and the local community. Agudath Israel synagogues
7
suspended services in March and did not re-open until late May or early June.
8
Some have shortened the length of services, and others have split services into
9
multiple separate gatherings to decrease the number of congregants present at one
10
time; all have implemented mask requirements and other safety protocols in
11
compliance with State guidance. The Governor does not dispute that there have
12
been no COVID-19 outbreaks in synagogues associated with Agudath Israel.
13
15 The individual appellants in No. 25-3572 are rabbis and an official of these affiliated
synagogues. For simplicity, we refer to the appellants associated with Agudath Israel of America
collectively as “Agudath Israel.”
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D.
Procedural History
1
1.
District Court
2
After the Governor issued the Order, the Diocese and Agudath Israel each
3
filed suit in the Eastern District of New York. The Diocese sought to enjoin
4
enforcement of only the Order’s 10- and 25-person fixed capacity limits (the “fixed
5
capacity limits”), while Agudath Israel sought an injunction against enforcement
6
of both the fixed capacity limits and the 25% and 33% capacity limits (the
7
“percentage capacity limits”).
8
The district court denied the Diocese’s motion for a preliminary injunction
9
after an evidentiary hearing. See Roman Cath. Diocese of Brooklyn v. Cuomo,
10
No. 20-cv-4844, 2020 WL 6120167, at *1 & n.1 (E.D.N.Y. Oct. 16, 2020). The district
11
court acknowledged that the Diocese had adequately alleged irreparable harm
12
based on the Order’s “infringe[ment] on its religious practice.” Id. at *5. But the
13
court applied rational-basis review, rather than strict scrutiny, and denied the
14
motion. The district court relied on the Chief Justice’s concurring opinion in South
15
Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), and various
16
decisions applying that opinion. Roman Cath. Diocese, 2020 WL 6120167, at *9–10.
17
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15
Agudath Israel likewise sought, and was denied, a temporary restraining
1
order and preliminary injunction from the district court. In an oral ruling, the
2
court held that Agudath Israel had failed to show irreparable harm, reasoning that
3
its congregants “can continue to observe their religion but there will have to be
4
modifications.” Tr. of Proceedings at 66, No. 20-cv-4834 (E.D.N.Y. Oct. 9, 2020).
5
The district court also concluded that rational-basis review applied, that Agudath
6
Israel was unlikely to succeed on the merits, and that the remaining injunction
7
factor weighed in favor of the Governor’s position.
8
2.
Second Circuit
9
The Diocese and Agudath Israel appealed the district courts’ denials of
10
preliminary injunctions. They also each filed emergency motions for injunctions
11
pending appeal in this Court. In an order dated November 9, 2020, a divided panel
12
denied injunctive relief pending appeal, but set an expedited schedule for
13
resolution of the appeals. See Agudath Israel of Am. v. Cuomo, 980 F.3d 222, 228
14
(2d Cir. 2020). The panel majority, relying on the Chief Justice’s South Bay
15
concurrence, agreed with the district courts that rational-basis review applied
16
because the Order “subjects religious services to restrictions that are similar to or,
17
indeed, less severe than those imposed on comparable secular gatherings.” Id. at
18
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16
226. Under that standard, the panel majority reasoned, the Order was likely to
1
pass constitutional muster. Id. at 227.
2
The dissenting member of the panel would have granted the injunctions
3
pending appeal based on the view that the Order should be subject to strict
4
scrutiny because it “singl[es] out ‘houses of worship’ for unfavorable treatment.”
5
Id. at 228 (Park, J., dissenting). In particular, the dissent noted, the Order places
6
no additional restrictions on secular businesses deemed “essential” while
7
imposing stringent capacity limits on “houses of worship.” Id. at 229–30.
8
3.
Supreme Court
9
After the denials of injunctive relief pending appeal, and while the
10
underlying appeals of the preliminary injunction denials remained pending in this
11
Court, the Diocese and Agudath Israel each applied for a writ of injunction in the
12
Supreme Court. They sought injunctions against enforcement of the Order’s fixed
13
capacity limits.
14
The Supreme Court granted injunctive relief for both applicants. See Roman
15
Cath. Diocese, 141 S. Ct. 63; Agudath Israel v. Cuomo, No. 20A90, 2020 WL 6954120
16
(U.S. Nov. 25, 2020). Specifically, the Court “enjoined [the Governor] from
17
enforcing Executive Order 202.68’s 10- and 25-person occupancy limits” on the
18
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17
applicants “pending disposition of the appeal in the United States Court of
1
Appeals for the Second Circuit and disposition of the petition for a writ of
2
certiorari, if such writ is timely sought.” Roman Cath. Diocese, 141 S. Ct. at 65;
3
Agudath Israel, 2020 WL 6954120, at *1.
4
In a per curiam opinion, the Court held that the applicants satisfied the
5
injunction factors and “clearly established their entitlement to relief pending
6
appellate review.” Roman Cath. Diocese, 141 S. Ct. at 66. First, the Court found that
7
the applicants “made a strong showing that the challenged restrictions violate the
8
minimum requirement of neutrality to religion” because the restrictions “single
9
out houses of worship for especially harsh treatment.” Id. (cleaned up). And
10
“[b]ecause the challenged restrictions are not neutral and of general applicability,”
11
the Court held, “they must satisfy strict scrutiny.” Id. at 67 (internal quotation
12
marks omitted). The Order likely failed that standard, however, because “it is
13
hard to see how the challenged regulations can be regarded as ‘narrowly
14
tailored.’” Id. In particular, the Court found that the fixed capacity limits are “far
15
more severe than has been shown to be required to prevent the spread of the virus
16
at the applicants’ services” and that “there are many other less restrictive rules that
17
could be adopted to minimize the risk to those attending religious services.” Id.
18
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18
The Court further held that “[t]here can be no question that the challenged
1
restrictions, if enforced, will cause irreparable harm.” Id. It also found that the
2
Governor had not “shown that granting the applications will harm the public,”
3
because the Governor “has not claimed that attendance at the applicants’ services
4
has resulted in the spread of disease” and “has not shown that public health would
5
be imperiled if less restrictive measures were imposed.” Id. at 68.
6
II. DISCUSSION
7
Appellants seek preliminary injunctions against enforcement of Executive
8
Order 202.68’s fixed capacity limits, which restrict occupancy in “houses of
9
worship” to 10 people in red zones and 25 people in orange zones. Agudath Israel
10
also seeks to enjoin the Order’s percentage capacity limits of 25% of maximum
11
occupancy in red zones and 33% in orange zones.
12
In light of the Supreme Court’s Roman Catholic Diocese decision, the
13
Governor has “withdraw[n] his objection to the entry of a preliminary injunction”
14
as to the fixed capacity limits. Appellee’s Br., No. 20-3572, at 30. He continues to
15
maintain, however, that those limits “do not violate the Free Exercise Clause.” Id.
16
And he defends the percentage capacity limits as constitutionally permissible,
17
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19
arguing that they do not burden Agudath Israel’s religious exercise and that they
1
may survive strict scrutiny.16
2
A.
Legal Standard
3
When “a preliminary injunction will affect government action taken in the
4
public interest pursuant to a statute or regulatory scheme, the moving party must
5
demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of
6
success on the merits, and (3) public interest weighing in favor of granting the
7
injunction.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d
8
133, 143 (2d Cir. 2016) (internal quotation marks omitted). We review a district
9
court’s denial of a preliminary injunction for abuse of discretion, but “must assess
10
de novo whether the court proceeded on the basis of an erroneous view of the
11
applicable law.” Id. (internal quotation marks omitted).
12
16 The Governor also argued before the Supreme Court that this case was moot due to his
modification of zone boundaries to remove the applicants’ churches and synagogues from red
and orange zones. The Court squarely rejected that argument, as do we. See Roman Cath. Diocese,
141 S. Ct. at 68 (“It is clear that this matter is not moot . . . [and that] injunctive relief is still called
for because the applicants remain under a constant threat that the area in question will be
reclassified as red or orange.” (citation omitted)). Notwithstanding the Supreme Court’s
November 25 decision, the Governor proceeded to renew the Order on December 2, including
the challenged fixed capacity limits on houses of worship.
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B.
Likelihood of Success on the Merits
1
1.
Strict Scrutiny
2
The First Amendment provides that the government “shall make no law
3
respecting an establishment of religion, or prohibiting the free exercise thereof.”
4
U.S. Const. amend. I; see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)
5
(incorporating the Free Exercise Clause against the states). It is well established
6
that discrimination against religion is “odious to our Constitution.” Trinity
7
Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017).
8
The Free Exercise Clause protects both an individual’s private right to
9
religious belief and “the performance of (or abstention from) physical acts that
10
constitute the free exercise of religion,” including “‘assembling with others for a
11
worship service.’” Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’t of Health &
12
Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (quoting Emp. Div., Dep’t of Hum.
13
Res. of Or. v. Smith, 494 U.S. 872, 877 (1990)). This protection “does not relieve an
14
individual of the obligation to comply with a valid and neutral law of general
15
applicability,” Smith, 494 U.S. at 879 (internal quotation marks omitted), and such
16
a neutral and generally applicable policy is subject to only rational-basis review,
17
Cent. Rabbinical Cong., 763 F.3d at 193. Official action “burdening religious conduct
18
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21
that is not both neutral and generally applicable, however, is subject to strict
1
scrutiny.” Id.
2
“To determine neutrality, we begin with the [Order’s] text, ‘for the
3
minimum requirement of neutrality is that a [government policy] not discriminate
4
on its face.’” Id. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
5
U.S. 520, 533 (1993)). The Order fails this basic standard by explicitly imposing on
6
“houses of worship” restrictions inapplicable to secular activities. “In a red zone,
7
while a synagogue or church may not admit more than 10 persons, businesses
8
categorized as ‘essential’ may admit as many people as they wish,” subject to only
9
the less stringent 50% capacity limit applicable to all businesses. Roman Cath.
10
Diocese, 141 S. Ct. at 66. And “[t]he disparate treatment is even more striking” in
11
orange zones, where “attendance at houses of worship is limited to 25 persons”
12
but most non-essential businesses must comply with only the generally applicable
13
50% capacity limit. Id. The fixed capacity limits thus “cannot be viewed as neutral
14
because they single out houses of worship for especially harsh treatment.” Id.
15
The Governor acknowledges that “the Supreme Court has seemingly
16
rejected the Governor’s explanation” of why the Order’s fixed capacity limits are
17
constitutional. Appellee’s Br., No. 20-3572, at 33. He nevertheless continues to
18
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22
argue that rational-basis review applies because those limits “do not disfavor
1
religious gatherings in houses of worship as compared with all secular activities
2
that present a similar or greater degree of risk of COVID-19 spread,” like “concerts
3
and theatrical performances.” Id. at 35 (internal quotation marks omitted). But
4
this only highlights the fact that the Order is not neutral towards religion.
5
Rational-basis review applies when a neutral and generally applicable policy
6
incidentally burdens religion; a policy that expressly singles out religion for less
7
favored treatment, as here, is subject to strict scrutiny. See Roman Cath. Diocese, 141
8
S. Ct. at 66–67; Cent. Rabbinical Cong., 763 F.3d at 193–94 (2d Cir. 2014).
9
Moreover, the Order does not impose generally applicable public-health
10
guidelines, like requiring masks and distancing or limiting capacity by time.
11
Instead, the Governor has selected some businesses (such as news media, financial
12
services, certain retail stores, and construction) for favorable treatment, calling
13
them “essential,” while imposing greater restrictions on “non-essential” activities
14
and religious worship. That lack of general applicability is also subject to strict
15
scrutiny.
16
Further, although the Governor asserts that “all” activities not restricted by
17
the Order present lesser risks of COVID-19 transmission than religious worship,
18
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23
he has never claimed that the unrestricted category of “essential” activities was
1
created based on transmission risk. Instead, “[t]he only explanation for treating
2
religious places differently seems to be a judgment that what happens there just
3
isn’t as ‘essential’ as what happens in secular spaces.” Roman Cath. Diocese, 141
4
S. Ct. at 69 (Gorsuch, J., concurring). Courts apply strict scrutiny to assess whether
5
a government policy impermissibly “‘devalues religious reasons’ for congregating
6
‘by judging them to be of lesser import than nonreligious reasons.’” Calvary Chapel
7
Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614 (2020) (Kavanaugh, J., dissenting)
8
(quoting Lukumi, 508 U.S. at 537–38).
9
The Supreme Court’s Roman Catholic Diocese opinion addressed only the
10
fixed capacity limits, but the same reasoning applies to the Order’s percentage
11
capacity limits, which by their own terms impose stringent requirements only on
12
houses of worship. One could easily substitute the percentage capacity limits for
13
the fixed capacity limits into the Supreme Court’s discussion of strict scrutiny
14
without altering the analysis. Thus, both the fixed capacity and percentage
15
capacity limits on houses of worship are subject to strict scrutiny.17
16
17 Agudath Israel also argues that the Order is subject to strict scrutiny for the independent
reason that the Governor “gerrymandered” the initial zone boundaries to target Orthodox Jewish
communities. We need not reach this argument because we conclude that the Order
discriminates against religion on its face.
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2.
Narrow Tailoring
1
Applying strict scrutiny, the Order’s restrictions on houses of worship are
2
constitutional only if they are “‘narrowly tailored’ to serve a ‘compelling’ state
3
interest.” Roman Cath. Diocese, 141 S. Ct. at 67 (quoting Lukumi, 508 U.S. at 546).
4
As the Supreme Court observed, “[s]temming the spread of COVID-19 is
5
unquestionably a compelling interest.” Id. The question is thus whether the
6
Order’s fixed and percentage capacity limits are narrowly tailored to address that
7
public-health concern.
8
Narrow tailoring requires the government to demonstrate that a policy is
9
the “least restrictive means” of achieving its objective. Thomas v. Rev. Bd. of Ind.
10
Emp. Sec. Div., 450 U.S. 707, 718 (1981). The government’s justification “must be
11
genuine, not hypothesized or invented post hoc in response to litigation.” United
12
States v. Virginia, 518 U.S. 515, 533 (1996); see also United States v. Brennan, 650 F.3d
13
65, 106 (2d Cir. 2011). And the government must show that it “seriously undertook
14
to address the problem with less intrusive tools readily available to it.” McCullen
15
v. Coakley, 573 U.S. 464, 494 (2014). In short, “[t]o meet the requirement of narrow
16
tailoring, the government must demonstrate that alternative measures” imposing
17
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lesser burdens on religious liberty “would fail to achieve the government’s
1
interests, not simply that the chosen route was easier.” Id. at 495.
2
Regarding the fixed capacity limits, the Governor has never seriously
3
contended that they are narrowly tailored to stem the spread of COVID-19, and he
4
appears to concede as much here. Those limits are “far more severe than has been
5
shown to be required to prevent the spread of the virus at [Appellants’] services,”
6
particularly because the Governor has pointed to no evidence of any outbreaks
7
related to Appellants’ churches and synagogues. Roman Cath. Diocese, 141 S. Ct. at
8
67. Most obviously, the 10- and 25-person restrictions do not account in any way
9
for the sizes of houses of worship in red and orange zones. Two Diocese churches
10
originally affected by the Order seat over 1,000 people, and more than ten
11
accommodate over 700. Likewise, Agudath Israel of Kew Garden Hills has a
12
capacity of over 400. “It is hard to believe that admitting more than 10 people to
13
a 1,000-seat church or 400-seat synagogue would create a more serious health risk
14
than the many other activities that the State allows.” Id.
15
The fixed capacity limits also bear little relation to the particular COVID-19
16
transmission risks the Governor identifies. As an initial matter, the Governor’s
17
identification of those risks relied on broad generalizations made by public-health
18
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officials about inherent features of religious worship. See, e.g., App’x, No. 20-3572,
1
at 294 (“Generally, the congregants are arriving and leaving at the same period
2
and are together over an extended period of time.”). 18 The government must
3
normally refrain from making assumptions about what religious worship
4
requires. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055
5
(2020) (“The First Amendment protects the right of religious institutions ‘to decide
6
for themselves, free from state interference, matters of church government as well
7
as those of faith and doctrine.’” (quoting Kedroff v. Saint Nicholas Cathedral of
8
Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952))). Even taking these
9
assertions at face value, however, the Governor must explain why the Order’s
10
density restrictions targeted at houses of worship are more effective than generally
11
applicable restrictions on the duration of gatherings or requirements regarding
12
masks and distancing. The Governor may not, of course, presume that religious
13
communities will not comply with such generally applicable regulations. See
14
18 Recent public statements from the Governor cast some doubt on his experts’ claims that
religious worship is self-evidently riskier than secular activities. In an address on December 11,
2020, the Governor presented a chart showing that, per “Statewide Contact Tracing Data,”
“Religious Activities” were the exposure source for only 0.69% of new COVID-19 infections in
the state from September through November. This figure is comparable to, or lower than, the
equivalent proportion for categories of activity deemed “essential”: 0.84% for “Manufacturing,”
0.66% for “Construction,” and 0.55% for “Professional Services.” See Governor Andrew M.
Cuomo, Governor Cuomo Announces Updated Zone Metrics, Hospital Directives and Business
Guidelines, YouTube (Dec. 11, 2020), https://youtu.be/QA1TdlK146Y.
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Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020) (“What [the Governor] can’t do is
1
assume the worst when people go to worship but assume the best when people go
2
to work or go about the rest of their daily lives in permitted social settings.”). Here,
3
Appellants have in fact made clear that they would follow generally applicable
4
public-health regulations.
5
While essentially conceding that the fixed capacity limits are not narrowly
6
tailored, the Governor continues to defend the percentage capacity limits. In
7
particular, he notes that the New York State Building Code calculates maximum
8
occupancy differently depending on the use of a particular building, and argues
9
that “using a uniform percentage-of-occupancy limit” for religious and secular
10
institutions alike “may produce very different results in terms of population
11
density.” Appellee’s Br., No. 20-3572, at 40–41. In other words, the Governor
12
appears to assert—for the first time in his opposition brief—that the percentage
13
occupancy limits were in fact a narrowly tailored effort to stem the tide of
14
COVID-19 transmission.
15
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28
We remand for the district court to consider in the first instance whether the
1
percentage capacity limits can survive strict scrutiny.19 It bears noting, however,
2
that the Building Code’s occupancy calculations do not refer to “houses of
3
worship,” but are instead based on neutral considerations like the type of seating
4
used and the “function of [the] space.” N.Y. State Building Code §§ 1004.5, 1004.6.
5
In addition, the Governor’s invocation of the Building Code for the first time on
6
appeal suggests a post hoc rationalization. Cf., e.g., Colo. Christian Univ. v. Weaver,
7
534 F.3d 1245, 1268 (10th Cir. 2008) (McConnell, J.) (“We cannot and will not
8
uphold a statute that abridges an enumerated constitutional right on the basis of a
9
factitious governmental interest found nowhere but in the defendants’ litigating
10
papers.”). Indeed, it appears to highlight the absence of contemporaneous
11
19 Before the Supreme Court’s Roman Catholic Diocese decision, all parties to this litigation
were focused primarily on the Order’s fixed capacity limits. Agudath Israel chose to challenge
only those limits in its application for injunctive relief in the Supreme Court. Similarly, Agudath
Israel’s counsel represented to this Court during oral argument on its motion for an injunction
pending appeal that it was not, at that time, objecting to the 25% capacity restriction. Under these
circumstances, we remand Agudath Israel’s motion for a preliminary injunction as to the
percentage capacity limits for the district court to decide in the first instance in light of the
Supreme Court’s decision and this opinion. Cf. Robinson v. Murphy, No. 20A95, 2020 WL 7346601
(U.S. Dec. 15, 2020) (vacating order denying injunctive relief, sought against enforcement of New
Jersey’s percentage capacity limits on indoor gatherings, and remanding to the Third Circuit
“with instructions to remand to the District Court for further consideration in light of” Roman
Catholic Diocese).
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evidence about where the specific percentage capacity limits for houses of worship
1
came from.
2
3.
COVID-19 and Judicial Review
3
Finally, the context of a public-health emergency does not change the result.
4
The district courts, the motions panel of this Court, and the Governor relied on
5
Jacobson v. Massachusetts, 197 U.S. 11 (1905), as support for the notion that courts
6
should defer to the executive in the face of the COVID-19 pandemic.20 But this
7
reliance on Jacobson was misplaced.
8
In Jacobson, the Supreme Court upheld a mandatory vaccination law against
9
a substantive due process challenge. Jacobson predated the modern constitutional
10
jurisprudence of tiers of scrutiny, was decided before the First Amendment was
11
incorporated against the states, and “did not address the free exercise of religion.”
12
Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015); see Roman Cath. Diocese,
13
141 S. Ct. at 70 (Gorsuch, J., concurring) (“Jacobson hardly supports cutting the
14
Constitution loose during a pandemic. That decision involved an entirely
15
20 The district courts, motions panel, and Governor also relied heavily on the Chief
Justice’s concurring opinion in South Bay. Whatever persuasive value that opinion may have had
in the early months of the COVID-19 pandemic, the Supreme Court’s decision in Roman Catholic
Diocese has supplanted South Bay. See Roman Cath. Diocese, 141 S. Ct. at 70 (Gorsuch, J., concurring)
(“Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume
applying the Free Exercise Clause.”).
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different mode of analysis, an entirely different right, and an entirely different
1
kind of restriction.”). Indeed, the Jacobson Court itself specifically noted that “even
2
if based on the acknowledged police powers of a state,” a public-health measure
3
“must always yield in case of conflict with . . . any right which [the Constitution]
4
gives or secures.” 197 U.S. at 25.
5
The fact that this case arises from a global pandemic is most relevant at the
6
first prong of strict scrutiny—that is, “[s]temming the spread of COVID-19 is
7
unquestionably a compelling interest.” Roman Cath. Diocese, 141 S. Ct. at 67. Our
8
focus then turns to whether the restrictions at issue are narrowly tailored and use
9
the least restrictive means available to achieve that interest. To be sure, the
10
uncertainties that accompany many novel emergencies may make it difficult to
11
assess whether, for example, a less restrictive alternative actually exists—calling
12
for a measure of humility on the part of the reviewing judge. But we grant no
13
special deference to the executive when the exercise of emergency powers
14
infringes on constitutional rights. That is precisely what the three-tiered
15
framework for analyzing constitutional violations is for, and courts may not defer
16
to the Governor simply because he is addressing a matter involving science or
17
public health. “[E]ven in a pandemic, the Constitution cannot be put away and
18
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forgotten.” Id. at 68; see also id. (confirming that “we have a duty to conduct a
1
serious examination” into the necessity of public-health measures that infringe on
2
constitutionally protected rights); Calvary Chapel, 140 S. Ct. at 2615 (Kavanaugh, J.,
3
dissenting) (“[H]istory is littered with unfortunate examples of overly broad
4
judicial deference to the government when the government has invoked
5
emergency powers and asserted crisis circumstances to override equal-treatment
6
and free-speech principles.”).
7
To be clear, the First Amendment does not categorically exempt houses of
8
worship from government regulation. See, e.g., Roman Cath. Diocese, 141 S. Ct. at
9
74 (Kavanaugh, J., concurring) (“In light of the devastating pandemic, I do not
10
doubt the State’s authority to impose tailored restrictions—even very strict
11
restrictions—on attendance at religious services and secular gatherings alike.”).
12
And judges “are not public health experts” and “should respect the judgment of
13
those with special expertise and responsibility in this area.” Id. at 68. But where
14
government regulations “single out houses of worship for especially harsh
15
treatment,” the government must demonstrate that its policies are narrowly
16
tailored. Id. at 66. The Governor has failed to do that in this case.
17
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C.
Irreparable Harm
1
As the Supreme Court held, “[t]here can be no question that the [fixed
2
capacity limits], if enforced, will cause irreparable harm.” Id. at 67. “The loss of
3
First Amendment freedoms, for even minimal periods of time, unquestionably
4
constitutes irreparable injury.” Id. (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)
5
(plurality op.)). And Appellants have clearly shown that the fixed capacity limits
6
impair their free exercise of religion by severely restricting the number of
7
congregants who may participate in worship services.
8
The Diocese presented evidence that its parishioners were “devastated” by
9
the effective closure of its churches, with some “crying” “at the front door” when
10
told they could not enter. Joint App’x, No. 20-3590, at 657. Likewise, Agudath
11
Israel submitted unrebutted testimony that it would be “impossible” for its
12
congregants to “comply with both their religious obligations and the limitations
13
of” the Order. App’x, No. 20-3572, at 257. As the Supreme Court observed:
14
If only 10 [or 25] people are admitted to each service, the great
15
majority of those who wish to attend Mass on Sunday or services in a
16
synagogue on Shabbat will be barred. And while those who are shut
17
out may in some instances be able to watch services on television,
18
such remote viewing is not the same as personal attendance.
19
Catholics who watch a Mass at home cannot receive communion, and
20
there are important religious traditions in the Orthodox Jewish faith
21
that require personal attendance.
22
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Roman Cath. Diocese, 141 S. Ct. at 67–68.
1
The court below concluded that Agudath Israel had not demonstrated
2
irreparable harm because its congregants could “continue to observe their
3
religion” with “modifications.” This was error. See, e.g., Hernandez v. Comm’r, 490
4
U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of
5
particular beliefs or practices to a faith, or the validity of particular litigants’
6
interpretations of those creeds.”). Religious adherents are not required to establish
7
irreparable harm independent of showing a Free Exercise Clause violation because
8
a “presumption of irreparable injury . . . flows from a violation of constitutional
9
rights.” Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Nevertheless, as Agudath
10
Israel explained, Orthodox Jews are obligated to have an in-person minyan—a
11
quorum—before some of Judaism’s most sacred rituals. Orthodox Jews also desist
12
from using electronics on Shabbat, so in-person gatherings are necessary for
13
Agudath Israel’s congregants. Appellants have demonstrated irreparable harm
14
that would result without a preliminary injunction against enforcement of the
15
Order’s fixed capacity limits on houses of worship.
16
As to the percentage capacity limits, if the district court concludes that the
17
plaintiffs are likely to prevail on their Free Exercise claims, it would follow that
18
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the Order causes irreparable harm. See Elrod, 427 U.S. at 373; Jolly, 76 F.3d at 482;
1
Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (noting that a plaintiff “has
2
sufficiently demonstrated for preliminary injunction purposes that he may suffer
3
irreparable harm arising from a possible deprivation of his constitutional rights”);
4
see also 11A Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure
5
§ 2948.1 (3d ed. 2020) (“When an alleged deprivation of a constitutional right is
6
involved, such as . . . freedom of religion, most courts hold that no further showing
7
of irreparable injury is necessary.” (footnote omitted)). Because the deprivation of
8
First Amendment rights is an irreparable harm, in First Amendment cases “the
9
likelihood of success on the merits is the dominant, if not the dispositive, factor.”
10
N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013).
11
D.
Public Interest
12
The remaining injunction factor, the interest of the public, also favors
13
granting injunctive relief. As the Supreme Court noted, “it has not been shown
14
that granting the applications will harm the public,” because the Governor has not
15
“claimed that attendance at [Appellants’] services has resulted in the spread of the
16
disease” or demonstrated that “public health would be imperiled if less restrictive
17
measures were imposed.” Roman Cath. Diocese, 141 S. Ct. at 68.
18
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No public interest is served by maintaining an unconstitutional policy when
1
constitutional alternatives are available to achieve the same goal. The restrictions
2
challenged here specially and disproportionately burden religious exercise, and
3
thus “strike at the very heart of the First Amendment’s guarantee of religious
4
liberty.” Id. Such a direct and severe constitutional violation weighs heavily in
5
favor of granting injunctive relief.
6
III. CONCLUSION
7
For the reasons set forth above, with respect to the Diocese’s appeal,
8
No. 20-3590, the district court’s order is reversed. We remand to the district court
9
with directions to grant a preliminary injunction against enforcement of the
10
Order’s 10- and 25-person occupancy limits on houses of worship.
11
With respect to Agudath Israel’s appeal, No. 20-3572, the district court’s
12
order is likewise reversed to the extent that it denied Agudath Israel’s motion for
13
a preliminary injunction as to the Order’s fixed capacity limits, and we remand to
14
the district court with directions to grant a preliminary injunction against
15
enforcement of those limits. The district court’s order is vacated to the extent that
16
it denied a preliminary injunction against enforcement of the Order’s 25% and 33%
17
capacity limits on houses of worship. As to those limits, we remand for further
18
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proceedings consistent with this opinion, including the application of strict
1
scrutiny in the analysis of Agudath Israel’s likelihood of success on the merits.
2
In the interest of judicial economy, all further proceedings and subsequent
3
appeals shall be referred to this panel.
4
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