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. The Roman Catholic Diocese of Brooklyn, New York, Plaintiff-Appellant, v. Governor Andrew M. Cuomo, in his official capacity, Defendant-Appellee.
Nos. 20-3572; 20-3590
United States Court of Appeals for the Second Circuit
November 9, 2020
Raymond J. Lohier, Jr., Michael H. Park, Circuit Judges, Jed S. Rakoff, Judge.*
E.D.N.Y. – Bklyn., 20-cv-4834, Matsumoto, J., 20-cv-4844, Garaufis, J. * Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.
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 9th day of November, two thousand twenty.
The executive order directs the New York State Department of Health to identify yellow, orange, and red “zones” based on the severity of outbreaks, and it imposes correspondingly severe restrictions on activity within each zone. For example, the order provides that in “red zones,” non-essential gatherings of any size must be cancelled, non-essential businesses must be closed, schools must be closed for in-person instruction, restaurants cannot seat customers, and houses of worship may hold services but are subject to a capacity limit of 25 percent of their maximum occupancy or 10 people, whichever is fewer.
The Appellants—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 (collectively, “Agudath Israel“), and The Roman Catholic Diocese of Brooklyn, New York (the “Diocese“)—each challenged the executive order as a violation of the Free Exercise Clause of the First Amendment. In each case, the district court denied the Appellants’ motion for a preliminary injunction against the enforcement of the order. The Appellants now move for emergency injunctions pending appeal and to expedite their appeals, after an applications Judge on our Court denied their requests for an administrative stay, No. 20-3572, doc. 30; No. 20-3590, doc. 29.
Preliminarily, we conclude that Agudath Israel did not “move first in the district court for” an order “granting an injunction while an appeal is pending” before filing with this Court its present motion for an injunction pending appeal.
We deny the Diocese‘s motion for an injunction pending appeal—and would deny the motion filed by Agudath Israel if it were properly before us—for the reasons that follow.
As an initial matter, an injunction is “an extraordinary remedy never
“The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status.” Espinoza v. Mont. Dep‘t of Revenue, 140 S. Ct. 2246, 2254 (2020) (quotation marks omitted); see Cent. Rabbinical Cong. of U.S. & Canada v. N.Y.C. Dep‘t of Health & Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (“[T]he Free Exercise Clause . . . protects the performance of (or abstention from) physical acts that constitute the free exercise of religion: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.“) (quotation marks omitted)). But the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Emp‘t Div., Dep‘t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (quotation marks omitted), “even if the law has the incidental effect of burdening a particular religious practice,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
“A law burdening religious conduct that is not both neutral and generally applicable, however, is subject to strict scrutiny.” Cent. Rabbinical, 763 F.3d at 193 (citing Lukumi, 508 U.S. at 531-32). “A law is not neutral if it is specifically directed at a religious practice.” Id. (cleaned up). Similarly, a law is “not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it.” Id. at 197.
The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the
Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings. Cf. No. 20-3590, doc. 20, Ex. L at 2 (Governor Cuomo criticizing the order‘s policy of “clos[ing] every school” as “a policy being cut by a hatchet,” not “a scalpel“). To the contrary, the executive order “extend[s] well beyond isolated groups of religious adherents” to “encompass[] both secular and religious conduct.” Cent. Rabbinical, 763 F.3d at 195.
In a dissent from this Court‘s order, our colleague asserts that the executive order is subject to strict scrutiny because it violates the minimum requirement of neutrality. The fact that theaters, casinos, and gyms are more restricted than places of worship, the dissent reasons, “only highlights the fact that the order is not neutral towards religion.” But this view is undermined by recent precedent, which makes clear that COVID-19 restrictions that treat places of worship on a par with or more favorably than comparable secular gatherings do not run afoul of the Free Exercise Clause. See, e.g., S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (guidelines that “place[d] restrictions on places of worship” less severe than those on comparable gatherings “appear consistent with the Free Exercise Clause“); see also Elim, 962 F.3d at 347 (same).
The dissent attempts to distinguish South Bay as having been decided during the early stages of the pandemic while local governments were actively shaping their response to changing facts on the ground. But here, too, the executive order is a response to rapidly changing facts on the ground. For several months, New York‘s “limits and restrictions lessen[ed] and evolve[d] as the curve continue[d] to flatten,” and the State‘s “limits and restrictions . . . increase[d]” only when “a review of the data indicate[d] a trend of increasing COVID-19 cases or spikes of cases in [the] cluster areas” targeted by the challenged executive order. No. 20 Civ. 4834 (KAM) (E.D.N.Y. 2020), doc. 12 at 14, 18-19. In any event, South Bay did not draw a distinction between the pandemic in its early or late stage. Its central relevant facts exist in New York in November 2020 just as they existed in California in May 2020: There is no vaccine or known cure for COVID-19; the pandemic has killed hundreds of thousands of Americans; and “[b]ecause people may be infected but asymptomatic, they may unwittingly infect others.” S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring).
Upon due consideration, and for the foregoing reasons, it is hereby ORDERED that the Appellants’ motions for injunctions
We address here only the Appellants’ motions for injunctions pending appeal and to expedite their appeals, not their underlying appeals challenging the district courts’ refusals to provide preliminary injunctive relief. With respect to the underlying appeals, the parties have agreed to the following merits briefing schedule: Appellants’ briefs are due Tuesday, November 17, 2020; Appellee‘s brief is due Tuesday, December 8, 2020; Appellants’ reply briefs are due Monday, December 14, 2020, and the matter is to be calendared as early as the week of December 14, 2020.
Judge Park dissents from the denial of the motions for injunctions pending appeal.
FOR THE COURT:
Catherine O‘Hagan Wolfe, Clerk of Court
Agudath Israel of America, et al., Plaintiffs-Appellants, v. Andrew M. Cuomo, Defendant-Appellee.
Nos. 20-3572; 20-3590
Park, Circuit Judge, dissenting:
In response to the COVID-19 pandemic, the Governor of New York issued an executive order imposing strict capacity limits on “houses of worship” in certain specified “zones.” Those restrictions apply only to religious institutions; in the same zones, pet shops, liquor stores, and other businesses the Governor considers “essential” remain open, free from any capacity limits. By singling out “houses of worship” for unfavorable treatment, the executive order specifically and intentionally burdens the free exercise of religion in violation of the First Amendment. I would thus grant the motions for injunctive relief pending appeal.
I
Discrimination against religion is “odious to our Constitution.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017). “Official action that targets religious conduct for distinctive treatment” must thus satisfy “the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 546 (1993).
A
First, the executive order fails the “minimum requirement of neutrality” towards religion, which means that a government policy may “not discriminate on its face.” Id. at 533. The order authorizes the New York State Department of Health to designate “areas in the State that require enhanced public health restrictions” as red, orange, or yellow zones. N.Y. Exec. Order No. 202.68. In each zone, the order subjects only “houses of worship” to special “capacity limit[s]“: in red zones, “25% of maximum occupancy or 10 people, whichever is fewer“; in orange zones, “the lesser of 33% of maximum occupancy or 25 people“; and in yellow zones, “50% of . . . maximum occupancy.” Id. But in the very same zones, numerous businesses deemed “essential” may operate with no such restrictions.1 This disparate treatment of religious and secular institutions is plainly not neutral.
The Governor argues that the executive order should nonetheless be subject to only rational-basis review because it treats houses of worship “more favorably” than “non-essential” secular businesses, like theaters, casinos, and gyms. But this only highlights the fact that the order is not neutral towards religion. Rational-basis review applies when a generally applicable policy incidentally burdens religion, but a policy that expressly targets religion is subject to heightened scrutiny. See Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep‘t of Health & Mental Hygiene, 763 F.3d 183, 194 (2d Cir. 2014). Here, the executive order does not impose neutral public-health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. Such targeting of religion is subject to strict scrutiny.
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (mem.), is not to the contrary. Summary decisions of the Supreme Court are precedential only as to “the precise issues presented and necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176 (1977). Petitioners in South Bay sought a writ of injunction, which is granted only when “the legal rights at issue are indisputably clear.” Id. at 1613 (Roberts, C.J., concurring) (citation omitted). Here, Appellants seek injunctions pending appeal, for which they need to show, at most, a “‘substantial’ likelihood” of success on the merits. United for Peace & Just. v. City of New York, 323 F.3d 175, 178 (2d Cir. 2003). In addition, the motions before this Court arise from quite different circumstances. South Bay was decided during the early stages of the pandemic, when local governments were struggling to prevent the healthcare system from being overwhelmed and were “actively shaping their response to changing facts on the ground.” Id. at 1614 (Roberts, C.J., concurring). By contrast, the Governor‘s stated concern here is maintaining localized containment. In April, New York reported a seven-day average of nearly 1,000 deaths per day from COVID-19.3 Six months later, that average has not exceeded 20 for months. See id.
Finally, the Governor overstates the import of Jacobson v. Massachusetts, 197 U.S. 11 (1905), which upheld a mandatory vaccination law
B
Applying strict scrutiny, there is little doubt that the absolute capacity limits on houses of worship are not “narrowly tailored.” Lukumi, 508 U.S. at 546. As the Governor himself admitted, the executive order is “not a policy being written by a scalpel,” but rather is “a policy being cut by a hatchet.” See Appellant‘s Br., No. 20-3590, at 4.
First, the fixed capacity limits do not account in any way for the sizes of houses of worship in red and orange zones. For example, two of the Diocese‘s churches in red or orange zones as of October 8, 2020 seat more than a thousand people. But the order nonetheless subjects them to the same 10-person limit in red zones applicable to a church that seats 40 people. Such a blunderbuss approach is plainly not the “least restrictive means” of achieving the State‘s public safety goal. Lukumi, 508 U.S. at 578.
The fixed capacity limits also bear little relation to the particular COVID-19 transmission risks the Governor identifies with houses of worship, such as “singing or chanting” and mingling before and after services. Churchgoers and daveners remain subject to generally applicable distancing and mask requirements, so the additional capacity limits assume that worshippers—unlike participants in “essential” activities—will not comply with such restrictions. The Governor may not, however, “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020). Here, Appellants have made clear that they would follow any generally applicable public-health restrictions.4
II
The remaining injunction factors also support granting the motions. Appellants presented unrebutted evidence that the executive order will prevent their congregants from freely exercising their religion. And “[t]he loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.)).5
I respectfully dissent from the denial of the motions for injunctions pending appeal.