Proposed preliminary injunction order (Feb. 5, 2021) — Agudath Israel v. Cuomo (2d Cir.)

Record facts

U.S. District Court for the Eastern District of New York · No. 1:20-cv-04834-KAM-RML · Doc. 39-1 · 2021-02-05 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
AGUDATH ISRAEL OF AMERICA, AGUDATH 
ISRAEL OF KEW GARDEN HILLS, AGUDATH 
ISRAEL OF MADISON, AGUDATH ISRAEL OF 
BAYSWATER, RABBI YISROEL REISMAN, 
RABBI MENACHEM FEIFER, STEVEN 
SAPHIRSTEIN, 
Plaintiffs, 
-against- 
Andrew M. Cuomo, Governor of the State of New York 
in his official capacity, 
Defendant. 
No. 20-cv-04834 
PRELIMINARY INJUNCTION ORDER 
Executive Order 202.68 imposes (among other things) capacity limitations on houses of 
worship operating in areas that have been designated as red zones or orange zones.  In red zones, 
“houses of worship shall be subject to a capacity limit of 25% of maximum occupancy or 10 
people, whichever is fewer.”  In orange zones, houses of worship are “subject to a maximum 
capacity limit of 33% of maximum occupancy or 25 people, whichever is fewer.” 
Defendant enacted Executive Order 202.68 on October 6, 2020 and has extended its 
restrictions five times without modification to the restrictions on houses of worship.  It currently 
is effective through February 26, 2021. 
Plaintiffs commenced this action on October 8, 2020, alleging that Executive Order 
202.68’s capacity restrictions on houses of worship violate the Free Exercise Clause.  Plaintiffs 
moved for a temporary restraining order and preliminary injunction prohibiting enforcement of 
these restrictions. On October 9, 2020, Plaintiffs’ motion was denied in a ruling from the bench.  
Case 1:20-cv-04834-KAM-RML   Document 39-1   Filed 02/05/21   Page 1 of 3 PageID #: 1093

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On November 25, 2020, the United States Supreme Court held that the 10- and 25-person 
limits in red and orange zones, respectively, were likely not “neutral” or “generally applicable” 
because “essential” businesses and certain “non-essential” businesses were not subject to the same 
restrictions, and that the fixed person capacity limits must satisfy “strict scrutiny.”  Roman 
Catholic Diocese of Brooklyn, N.Y. v. Cuomo, 141 S. Ct. 63, 66–67 (2020) (per curiam).  The 
Supreme Court stated that the fixed person limits addressed a compelling state interest but 
questioned “how the challenged regulations can be regarded as ‘narrowly tailored’” because, 
among other reasons, “they are far more severe than has been shown to be required to prevent the 
spread of the virus at the applicants’ services” and “there are many other less restrictive rules that 
could be adopted to minimize the risk to those attending religious services.”   Id. at 67–68. The 
Court also concluded that the fixed person limits, “if enforced, will cause irreparable harm,” and 
that “it has not been shown that granting the applications will harm the public.”  Id. at 68.
The Supreme Court therefore granted Plaintiffs’ application for an injunction against 
enforcement of Executive Order 202.68’s 10- and 25-person limits “pending disposition of the 
appeal in the United States Court of Appeals for the Second Circuit . . .”  Agudath Israel, et al. v. 
Cuomo, 20A90 (U.S. Nov. 25, 2020). 
On December 28, 2020, the Second Circuit held that “both the fixed capacity and the 
percentage capacity limits on houses of worship” in the red and orange zones “are subject to strict 
scrutiny.”  Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 632 (2d Cir. 2020).  The Second Circuit: 
(1) remanded the case to this Court with directions to grant a preliminary injunction against 
enforcement of Executive Order 202.68’s 10- and 25-person limits; (2) vacated the October 9, 2020 
Order to the extent that it denied a preliminary injunction against enforcement of Executive Order 
202.68’s 25% and 33% capacity limits on houses of worship; and (3) with respect to those percentage 
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capacity limits, remanded for further proceedings consistent with its opinion, including the application 
of strict scrutiny.  Id. at 637.  The Second Circuit also directed that if “plaintiffs are likely to prevail on 
their Free Exercise claims, it would follow that the Order causes irreparable harm” because “the 
deprivation of First Amendment rights is an irreparable harm,” and that the public interest “favors 
granting injunctive relief.”  Id.
On January 19, 2021, this Court entered an Order stating: “In light of the Second Circuit’s 
decision on appeal [26], the plaintiffs’ Motion for a Preliminary Injunction [2] against Executive 
Order 202.68’s 10- and 25-person occupancy limits is GRANTED for the reasons stated therein.” 
On January 25, 2021, this Court scheduled a preliminary injunction hearing on Executive Order 
202.68’s 25% and 33% capacity limitations on houses of worship for February 8, 2021. 
Defendant has advised this Court that he does not contend that the 25% and 33% capacity 
limits on houses of worship in Executive Order 202.68 are narrowly tailored, and therefore cannot 
satisfy strict scrutiny.  
In light of the above, Plaintiffs’ motion for a preliminary injunction against Executive 
Order No. 202.68’s 25% and 33% capacity limits on houses of worship is GRANTED. 
This Order shall apply to Defendant and all officers, agents, or employees responsible for 
enforcing Executive Order 202.68, and shall apply to all houses of worship in New York State.  
Dated: New York, New York  
            February  ____, 2021 
____________________________ 
The Honorable Kiyo A. Matsumoto  
United States District Judge 
Case 1:20-cv-04834-KAM-RML   Document 39-1   Filed 02/05/21   Page 3 of 3 PageID #: 1095

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