470 F.Supp.3d 268
N.D.N.Y.2020Background
- In response to COVID-19, New York issued a series of executive orders restricting gatherings and business operations; by June 2020 houses of worship were limited to 25% indoor capacity (Order 202.38) and outdoor gatherings were capped (10/25 depending on phase), while some secular activities (Phase 2 businesses, restaurants in Phase 3) were allowed up to 50% or otherwise treated differently.
- Plaintiffs are Catholic priests and Orthodox Jewish congregants who say the capacity and gathering limits prevent them from performing essential religious rites (Mass, Communion, minyan, weddings, funerals), and that drive-in services and other alternatives are inadequate.
- Plaintiffs sued state and city officials (Governor Cuomo, Attorney General James, Mayor de Blasio) under 42 U.S.C. § 1983 alleging Free Exercise, Free Speech/Assembly, Equal Protection, and ultra vires violations, and sought a preliminary injunction.
- Plaintiffs emphasized apparent government tolerance or encouragement of large racial-justice protests and explicit exemptions (e.g., outdoor graduations of up to 150), arguing the rules are underinclusive and selectively enforced against religious activity.
- The court found plaintiffs likely to succeed on their Free Exercise claim (concluding the challenged laws are not generally applicable and would trigger strict scrutiny), found irreparable harm and that the balance of hardships/public interest favored plaintiffs, and granted a preliminary injunction limiting enforcement of stricter indoor/ outdoor caps against plaintiffs so long as they follow social‑distancing guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the COVID‑related gathering rules are neutral and generally applicable under Free Exercise precedent | The orders are underinclusive/selective: secular activities (Phase 2 businesses, restaurant capacity, graduations, tolerated protests) are treated more favorably than religious gatherings | The rules are neutral and generally applicable, tailored to public health; enforcement discretion does not create a constitutional exemption | Court: Likely not generally applicable — 25% cap on houses of worship and express/tacit exemptions render the scheme underinclusive/selective, so strict scrutiny applies |
| Whether mass protests and other permitted activities create an individualized or de facto exemption | Protests were effectively encouraged/tolerated by officials and graduations were expressly exempted, showing unequal treatment that must be extended to religion absent compelling reason | Defendants rely on public‑safety enforcement discretion and contend protests differ (outdoors, policing concerns) | Court: Officials’ statements and selective enforcement/equitable exemptions (e.g., graduations) support finding of de facto exemptions undermining general applicability |
| Whether the State’s interest (controlling COVID‑19) satisfies strict scrutiny as applied | Plaintiffs: Even assuming a compelling interest, defendants have not narrowly tailored restrictions as applied to plaintiffs who can follow distancing/hygiene rules | Defendants: Preventing viral spread is a compelling interest; broad, science‑based measures are justified and should get deference | Court: State interest acknowledged but defendants failed to justify the specific discriminatory limits; strict scrutiny not satisfied as applied to these plaintiffs |
| Preliminary injunction factors (irreparable harm, balance, public interest) | Loss of free exercise is irreparable; plaintiffs face threatened enforcement and inability to perform rites; balance/public interest favor religious parity | Defendants: Plaintiffs can use alternatives and are not wholly prevented from worship; public health weighs against broad injunction | Court: First Amendment harm is irreparable; balance and public interest favor injunction conditioned on compliance with social‑distancing guidance |
Key Cases Cited
- S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Supreme Court facially denied injunctive relief in pandemic restrictions and emphasized deference to public‑health officials)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (state authority to protect public health is broad but not unlimited)
- Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws need not satisfy strict scrutiny)
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (laws targeting or not neutral toward religion trigger strict scrutiny)
- Cent. Rabbinical Cong. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183 (2d Cir. 2014) (underinclusive regulations that burden religion may trigger heightened review)
- Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d 887 (2d Cir. 2015) (standard for preliminary injunction elements)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)
- Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (treatment of similarly situated entities should be consistent to preserve free‑exercise guarantees)
- N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) (public interest factor in injunction analysis)