566 F.Supp.3d 171
E.D.N.Y.2021Background
- In Aug. 2021 NYC issued Emergency Executive Orders (EEOs 225, 226, 228) requiring proof of COVID-19 vaccination for entry to specified indoor venues: entertainment/recreation, indoor dining, and gyms, with narrow exceptions and mask/distancing conditions.
- Covered entities must check proof of vaccination/ID; violations carry escalating fines ($1,000 minimum, higher for repeat violations) effective Sept. 13, 2021 for penalties.
- Plaintiffs (individuals, businesses, and an association) sought a preliminary injunction asserting multiple claims: Equal Protection (racial animus), substantive due process and First Amendment (religion, bodily integrity, association, occupation, child-rearing), Thirteenth Amendment, regulatory taking, and violation of NY law; they also argued federal preemption under the FDCA EUA provisions.
- The City defended the EEOs as facially neutral, narrowly tailored public‑health measures rationally related to preventing spread of COVID-19 and avoiding hospital capacity crises (Delta variant context) and asserted lawful emergency authority under New York law.
- The court found plaintiffs would not likely succeed on the merits, applied rational‑basis / Jacobson framework for public‑health emergency measures, and denied the preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Protection (racial animus) | EEOs target African American/Hispanic communities because of lower vaccination rates and intent to coerce vaccination | EEOs are facially neutral; apply equally to all unvaccinated persons; disparity can be remedied by vaccination; rationally related to public health | Claim fails — no suspect classification or animus; rational basis satisfied |
| Free Exercise / Religion | Orders burden religious practices by excluding unvaccinated worshippers from venues | Orders are neutral and generally applicable; do not mandate vaccination and exemptions are available by vaccination | Claim fails — neutral law of general applicability; comparable precedent permits exclusion during outbreaks |
| Substantive Due Process — bodily integrity / right to refuse vaccine | EEOs amount to coercion/forced vaccination and violate liberty interests | Right to refuse vaccination is not a fundamental right; measures bear a real relation to public health (Jacobson) | Claim fails — rational‑basis review applies; restrictions permissible in a public‑health emergency |
| Freedom of Association | Orders prevent collective protest/association of unvaccinated persons | EEOs do not target expressive activity or viewpoints and preserve private association; restrictions serve highest‑order public health interests | Claim fails — association rights not unduly burdened; policy is viewpoint neutral and health‑motivated |
| Occupational liberty / business impact | Orders impair ability to pursue chosen occupations and will cause irreparable business harm | Orders condition access to higher‑risk indoor work/venues but do not completely bar practice; alternatives (outdoor, takeout) exist | Claim fails — no complete prohibition, only a conditional regulation subject to rational review |
| Takings & Thirteenth Amendment | EEOs force businesses/employees to labor for mayoral policy and effect a taking | Measures are temporary public‑health regulations, not slavery/indenture or categorical takings; economic harms speculative and remediable | Claims fail — Thirteenth Amendment inapplicable; no non‑categorical taking shown; Sherman/Penn Central factors not satisfied |
| NY emergency authority / Preemption | Mayor exceeded state law/emergency power; FDCA EUA provisions preempt coercive vaccine policies | NY Exec. Law authorizes mayoral emergency orders regulating places of assembly; EEOs do not criminalize refusal and are not preempted | Claim fails — EEOs issued pursuant to state emergency authority and are not an unlawful preemption of federal EUA rules |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (preliminary‑injunction framework requires considering public consequences and Winter factors)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (upheld vaccine requirements during public‑health crises; government may impose reasonable regulations)
- Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015) (upheld exclusion of unvaccinated students during outbreaks; religious‑exemption analysis)
- Roberts v. United States Jaycees, 468 U.S. 609 (1984) (scope and limits of freedom of association; right not absolute)
- Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free Exercise protects belief absolutely but conduct is subject to neutral laws)
- Employment Division v. Smith, 485 U.S. 660 (1988) (neutral, generally applicable laws need not satisfy strict scrutiny under Free Exercise Clause)
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (recognizes state latitude in public‑health regulation but applies constitutional scrutiny to certain restrictions on religious exercise)
- Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (framework for proving discriminatory intent under Equal Protection)