Permanent injunction order — Agudath Israel v. Cuomo

Summary

A permanent injunction order, Document 44, filed 02/09/21 in Agudath Israel of America v. Cuomo, No. 1:20-cv-04834-KAM-RML, in the U.S. District Court for the Eastern District of New York, dated February 8, 2021 over the name of United States District Judge Kiyo A. Matsumoto. The order recounts that Executive Order 202.68, issued October 6, 2020, limits houses of worship to 25% of maximum occupancy or 10 people in red zones and 33% or 25 people in orange zones; it cites the Supreme Court's November 25, 2020 injunction and the Second Circuit's December 28, 2020 holding that both the fixed and percentage limits are subject to strict scrutiny, and states that Defendant agreed to an injunction against the 25% and 33% limits. The court grants a permanent injunction against enforcement of those limits on houses of worship in red and orange zones in New York State.

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1 
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,    
 
 
  
          
 
 
 
 
       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
     
 
 
 
 
 
 
 
 
                                 ORDER 
        20-cv-4834 
 
-against-                          
 
  
 
 
 
 
 
 
      
Andrew M. Cuomo, Governor of the 
State of New York in his official 
capacity, 
        
 
 
 
     
                 
 
Defendant.       
 
 
 
PERMANENT 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 issued 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 
Case 1:20-cv-04834-KAM-RML   Document 44   Filed 02/09/21   Page 1 of 5 PageID #: 1103

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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 in red and orange zones violate the Free 
Exercise Clause.  Plaintiffs moved for a temporary restraining 
order and preliminary injunction prohibiting enforcement of these 
restrictions in red and orange zones.  On October 9, 2020, after 
an expedited hearing, Plaintiffs’ motion was denied in a ruling 
from the bench.   
 
On November 25, 2020, the United States Supreme Court 
held that the 10- and 25-person limits in red and orange zones, 
respectively, in Executive Order 202.68 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 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 
Case 1:20-cv-04834-KAM-RML   Document 44   Filed 02/09/21   Page 2 of 5 PageID #: 1104

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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 capacity limits, remanded for 
further proceedings consistent with its opinion, including the 
application of a strict scrutiny analysis.  Id. at 637.  
 
 
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 
for February 8, 2021, on Executive Order 202.68’s 25% and 33% 
capacity limitations on houses of worship. 
 
 
In light of the decisions by the Supreme Court, Roman 
Catholic Diocese of Brooklyn, N.Y. v. Cuomo, 141 S. Ct. 63 (2020), 
and the Second Circuit, Agudath Israel of Am. v. Cuomo, 983 F.3d 
620(2d Cir. 2020), specifically finding that “both the fixed 
capacity and percentage capacity limits on houses of worship” in 
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the red and orange zones “are subject to strict scrutiny,” 983 
F.3d 620, 632, Defendant has agreed to an injunction against 
enforcement of the 25% and 33% capacity limits in red and orange 
zones, respectively, and has not presented additional evidence 
to supplement what was submitted in opposition to the Plaintiffs’ 
motion for a temporary restraining order and preliminary 
injunction.  Subsequently, Defendant’s counsel has represented 
in status conferences that before the end of February 2021 EO 
202.68 will be amended to remove houses of worship.   
 
 
For the foregoing reasons, the court grants a permanent 
injunction against enforcement of EO 202.68’s 25% capacity or 
maximum of 10-people, and 33% capacity or maximum of 25-people 
limitations on houses of worship, respectively in red and orange 
zones. 
 
This Order shall apply to Defendant and all officers, 
agents, or employees responsible for enforcing Executive Order 
202.68, and shall apply to the 10- and 25-person limitations and 
the 25% and 33% occupancy limits for all houses of worship, 
respectively in red and orange zones in New York State. SO 
ORDERED. 
 
 
 
 
 
 
 
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Dated: February 8, 2021 
Brooklyn, New York 
 
 
 
 
 
 
 
 
 
Kiyo A. Matsumoto, USDJ  
 
 
 
 
 
 
 
Hon. Kiyo A. Matsumoto 
 
 
 
 
 
 
 
United States District Judge 
 
 
 
Case 1:20-cv-04834-KAM-RML   Document 44   Filed 02/09/21   Page 5 of 5 PageID #: 1107

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