Case Information
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ASS’N OF JEWISH CAMP OPERATORS;
SAMUEL WERZBERGER; ARIELA ORKABY;
BETH STATFIELD; and GAIL ZAHTZ,
Plaintiffs, v. 1:20-CV-0687
(GTS/DJS) ANDREW M. CUOMO, Governor of the State of
New York, in his official capacity,
Defendant.
__________________________________________
APPEARANCES: OF COUNSEL:
TROUTMAN PEPPER BENNET J. MOSKOWITZ, ESQ.
Counsel for Plaintiffs AVI SCHICK, ESQ.
875 Third Avenue WILLIAM ALEXANDER SMITH, ESQ. New York, NY 10022
HON. LETITIA A. JAMES CHRISTOPHER LIBERATI-CONANT, ESQ. Attorney General for New York Assistant Attorney General Counsel for Defendants
The Capitol
Albany, NY 12224
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this civil rights action filed by the Association of Jewish Camp Operators, Samuel Werzberger, Ariela Orkaby, Beth Statfield, and Gail Zahtz (“Parent- Plaintiffs”) (collectively “Plaintiffs”) against Andrew M. Cuomo (in his capacity as Governor of the State of New York) (“Defendant”), is Plaintiffs’ motion for a preliminary injunction enjoining Defendant from prohibiting the operation of overnight children’s camps anywhere in New York State for the summer of 2020, pursuant to Fed. R. Civ. P. 65(b). (Dkt. No. 7, Attach. 2 [Pls.’ Mem. of Law].) [1] Defendant opposed Plaintiffs’ motion. (Dkt. No. 17.) For the reasons set forth below, Plaintiffs’ motion for a preliminary injunction is denied.
I. RELEVANT BACKGROUND
A. Plaintiffs’ Claims Generally, liberally construed, Plaintiffs’ Complaint asserts the following four claims: (1) a claim that Defendant violated the Free Exercise Clause of the First Amendment pursuant to 42 U.S.C. § 1983, by discriminatorily banning children’s Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to curbing the transmission of the COVID-19 virus; [2] (2) a claim that Defendant violated the Due Process Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, by infringing on parents’ fundamental right to control the upbringing and education of their children through banning children’s Jewish overnight camps without a reasonable relationship between the ban and the curbing of the spread of the COVID-19 virus; (3) a claim that Defendant violated the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983 by discriminatorily banning Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to sufficient state interest; and (4) a claim that Defendant violated Article One, Section Three of the New York State Constitution because any interest advanced by Defendant in closing overnight children’s camps to purportedly curb the transmission of COVID-19 is outweighed by the substantial burden imposed on the right to free exercise of religion. ( See generally Dkt. No. 1.) Familiarity with the factual allegations supporting these claims in Plaintiffs’ Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. ( Id .) Plaintiffs’ Motion
B.
1. Plaintiffs’ Memorandum of Law Generally, in support of their motion for a preliminary injunction, Plaintiffs assert the following three arguments: (1) Plaintiffs have shown that they are likely to succeed on the merits of their claims because (a) Defendant’s executive order [3] violates the Free Exercise Clause of the First Amendment, (b) Defendant’s executive order infringes on the Parent-Plaintiffs’ fundamental right to control the education and upbringing of their children under the substantive Due Process Clause of the Fourteenth Amendment, and (c) Defendant’s executive order violates the Parent-Plaintiffs’ hybrid right to direct the religious education of their children; (2) Plaintiffs have demonstrated irreparable harm based on the threatened loss of First Amendment freedoms; (3) the balance of hardships tips in Plaintiffs’ favor because (a) the overnight camps are uniquely positioned to protect against the transmission of COVID-19, (b) the overnight camps’ have implemented aggressive screening and prevention measures, (c) children are much less susceptible to COVID-19 than adults, (d) there is “low prevalence” of COVID-19 throughout [3] Plaintiffs argue that the general closures implemented by Executive Orders 202.8 and 202.10 are the basis for their claims because overnight children’s camps were closed as a result of those executive orders rather than as a result of any clarifying statements made by Defendant or his representatives on June 12, 2020. (Hearing Transcript.) For purposes of brevity and convenience, the Court will refer to Defendant’s statewide closure order as an “executive order” throughout the remainder of this Decision and Order.
New York State at this time, and (e) there is a “remote” chance of a serious outbreak; and (4) Plaintiffs have demonstrated that the preliminary injunction would be in the public interest because Defendant lacks the constitutionally sufficient justification for infringing on Plaintiffs’ constitutional rights. ( See generally Dkt. No. 5, Attach. 9 [Pls.’ Memo. of Law].)
2. Defendant’s Opposition Memorandum of Law Generally, in opposition to Plaintiffs’ motion, Defendant assert the following three arguments: (1) Plaintiffs failed to establish that they are likely to succeed on the merits of their claims because (a) Defendant exercised his lawful power to protect the health and safety of the people of New York State from the COVID-19 virus, (b) Defendant is entitled to legislative immunity because his actions were taken in a “legislative capacity,” (c) the executive order barring overnight camps from opening during the summer of 2020 was neutral, generally applicable, and rationally related to stopping the spread of the COVID-19 virus, (d) the closure of overnight camps does not amount to a constitutional violation of parents’ Fourteenth Amendment right to direct the upbringing of their child, and (e) the Second Circuit does not recognize the existence of a “hybrid” claim; (2) Plaintiffs failed to establish irreparable harm because the State only incidentally religious and cultural instruction by temporarily closing all summer camps; and (3) the issuance of a TRO and/or preliminary injunction is not in the public interest because the equities balance in favor of the State’s efforts to protect the public health during an existing pandemic. ( See generally Dkt. No. 17 [Def.’s Opp’n Memo. of Law].)
3. Plaintiffs’ Reply Memorandum of Law Generally, in reply to Defendant’s response, Plaintiffs, focusing only on their Free Exercise claim, argue as follows: (1) they are likely to succeed on the merits of this claim because (a) Defendant’s explicit and de facto exemptions to the restrictions imposed by the executive orders for mass protests and secular activity unconstitutionally treat religion less favorably than secular conduct, and (b) Defendant’s refusal to accommodate overnight camps is not neural in that (although it also applies to non-Jewish overnight camps) it was imposed only after almost all of the non-Jewish overnight camps in the state had already canceled their summer programs, and it is not generally applicable in that it does not apply to nighttime protestors (who are permitted by Defendant to congregate for extended durations in enclosed theater and museum lobbies); and (2) Plaintiffs will suffer irreparable harm without injunctive relief because overnight camps offer such an uncommon and immersive experience (of fostering religious identity and instilling religious values) that they constitute an “essential component” of their children’s education and religious growth and well-being; (3) the balance of hardships and public interests weighs in favor of Plaintiffs because Defendant cannot establish that his interests would suffer meaningful harm were the Court to issue an injunction; and (4) Defendant is not entitled to legislative immunity. ( See generally Dkt. No. 20 [Pls.’ Reply Memo. of Law].)
C. June 30, 2020, Hearing
After granting Plaintiff’s application for an order to show cause, the Court held a hearing on Plaintiffs’ motion through video conference on June 30, 2020. (Dkt. No. 13.) At the conclusion of the hearing, the Court provided the parties with an opportunity to supplement the record and submit additional argument.
D. The Parties’ Supplemental Briefs
Generally, in their supplemental brief, Plaintiffs assert the following five arguments: (1) Plaintiffs are likely to succeed on the merits of their claims because Defendant exempted, either explicitly or through a de facto nature, mass protests and secular activities that are at least as harmful to the spread of the COVID-19 virus as are overnight camps; (2) Defendant wrongly claims that overnight camps generate greater risks than do permitted secular activities because the undisputed evidence demonstrates that each risk Defendant cites to support the ban on overnight camps applies to an equal or greater degree to exempted secular activity; (3) Defendant’s decision to prohibit overnight camps from opening during the summer of 2020 is not neutral and generally applicable because Defendant’s refusal to extend similar accommodations to Jewish overnight camps establishes discriminatory treatment; (4) Plaintiffs will suffer irreparable harm without injunctive relief because Jewish overnight camps are a “central religious institution [to] the American Jewish community;” and (5) the balance of hardships and the public interest favor Plaintiffs because the risks Defendant cites for prohibiting overnight camps applies to the same or greater extent to already exempted secular activity. ( See generally Dkt. No. 26.)
Generally, in his supplemental brief, Defendant asserts the following three arguments: (1) the correct standard of review for all of Plaintiffs’ claims is rational basis; (2) neither residential higher education facilities nor day camps are comparable to overnight camps because day camps and higher education facilities do not involve the same level of risk of COVID-19 related harm; and (3) even if the Court applies strict scrutiny to the facts of this case, the closure of overnight camps was narrowly tailored to meet a compelling state interest because Defendant’s decision was no broader than necessary to combat the COVID-19 virus. ( See generally Dkt. No. 25.)
II. GOVERNING LEGAL STANDARD
“‘The purpose of a preliminary injunction is . . . to preserve the relative positions of the
parties.’”
N. Am. Soccer League, LLC. v. U.S. Soccer Fed’n, Inc.
,
With regard to the first part of the first element, a “likelihood of success” requires a
demonstration of a “better than fifty percent” probability of success.
Abdul Wali v. Coughlin
,
With regard to the second part of the first element, “[a] sufficiently serious question as to
the merits of the case to make it a fair ground for litigation” means a question that is so
“substantial, difficult and doubtful” as to require “a more deliberate investigation.”
Hamilton
Watch Co. v. Benrus Watch Co.
,
[5]
See also Six Clinics Holding Corp., II v. Cafcomp Sys., Inc.
,
characterized as a “real hardship,” such as being “driven out of business . . . before a trial could
be held.”
Buffalo Courier-Express, Inc. v. Buffalo Evening News, Inc.
,
With regard to the second element, “irreparable harm” is “certain and imminent harm for
which a monetary award does not adequately compensate.”
Wisdom Import Sales Co. v. Labatt
Brewing Co.
,
With regard to the third element, the “public interest” is defined as “[t]he general welfare of the public that warrants recognition and protection,” and/or “[s]omething in which the public as a whole has a stake[,] esp[ecially], an interest that justifies governmental regulation.” Public Interest, Black’s Law Dictionary (9th ed. 2009).
The Second Circuit recognizes three limited exceptions to the above-stated general
standard.
Citigroup Global Markets, Inc.
,
First, where the moving party seeks to stay government action taken in the public interest
pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous
“serious questions” standard but should grant the injunction only if the moving party establishes,
along with irreparable injury, a likelihood that he will succeed on the merits of his claim.
Id
.
(citing
Able v. United States
,
Second, a heightened standard–requiring both a “clear or substantial” likelihood of
success and a “strong” showing of irreparable harm”–is required when the requested injunction
(1) would provide the movant with all the relief that is sought and (2) could not be undone by a
judgment favorable to non-movant on the merits at trial.
Citigroup Global Markets, Inc.
, 598
F.3d at 35, n.4 (citing
Mastrovincenzo v. City of New York
,
Third, the above-described heightened standard may also be required when the
preliminary injunction is “mandatory” in that it would “alter the status quo by commanding some
positive act,” as opposed to being “prohibitory” by seeking only to maintain the
status quo
.
Citigroup Global Markets, Inc.
,
Because the parties have demonstrated in the memoranda of law an adequate understanding of this legal standard, the Court need not, and does not, further elaborate on this legal standard in this Decision and Order, which is intended primarily for the review of the parties.
III. ANALYSIS
As a threshold matter, the Court must elaborate on the standards to be applied under the
facts of this case. First, it is uncontested that Plaintiffs seek to stay a government action (the
cancellation of all overnight camps throughout New York State for the summer of 2020) taken in
the public interest (to minimize the transmission of the sometimes deadly COVID-19 virus)
pursuant to a regulatory scheme (Defendant’s Executive Order 202 and its continued directives).
(
See generally
Dkt. No. 1.) Accordingly, pursuant to Second Circuit precedent, the Court will
analyze Plaintiffs’ claims only under the likelihood of success prong (not also the sufficiently
serious question prong).
Citigroup Global Markets, Inc.
,
A. Likelihood of Success on the Merits
After carefully considering the parties’ arguments on this issue, the Court finds that Plaintiff has not demonstrated a likelihood of success on the merits for the reasons stated by Defendant in his memorandum of law. (Dkt. No. 17, at 19-27 [Def.’s Opp’n Mem. of Law].) To those reasons, the Court adds the following analysis (which is intended to supplement and not supplant Defendant’s reasons).
1. Legislative Immunity
Defendant argues that he is entitled to legislative immunity because he was acting in his
legislative capacity. “[L]egislative immunity
may
bar . . .
certain
claims for injunctive relief
against state officials.”
State Employees Bargaining Agent Coalition v. Rowland
,
A defendant is entitled to legislative immunity if the defendant (1) was acting in his or
her “legislative” capacity under the test articulated in
Bogan
, and (2) the grant of the requested
relief would enjoin the defendant in his or her performance of legislative functions.
Rowland
,
The Court recognizes the extenuating circumstances and the difficulty of responding to a pandemic in real-time; however, Defendant’s position is untenable. Were the Court to adopt Defendant’s position, the Governor of New York would be able to unilaterally issue executive orders without providing the opportunity for his or her constituents to sue to enjoin these actions. In other words, the Governor would be able to shield his or her executive actions from suit, without judicial review. This position conflicts with one of the foundational principles of our democracy—a system of checks and balances, regardless of circumstance.
Moreover, the Court remains unconvinced that Defendant’s executive orders are entitled to legislative immunity under Second Circuit precedent. First, Defendant’s executive orders are not legislative in form. See Executive Order, Black’s Law Dictionary (10th ed. 2014) (“An order issued by or on behalf of the President, [usually] intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.”). By nature, executive orders are not legislative . See Manzi v. DiCarlo , 982 F. Supp. 125, 128 (E.D.N.Y. 1997) (“Legislative immunity covers only legislative acts ‘generally done in the course of the process of enacting legislation’. . . .”). The legislature plays no part in the drafting or passing executive orders, that power is reserved for the executive branch. Defendant’s executive orders do not qualify as an “integral step” in the legislative process; in fact, they avoid the legislative process altogether.
With respect to the second Rowland element, it is arguable that, in this case, Defendant’s executive orders are legislative in substance. Here, Defendant’s executive orders implementation of various restrictions on businesses and citizens statewide reflects the discretionary policymaking decision of limiting and eradicating of the transmission of the COVID-19 virus. Defendant’s executive orders have re-prioritized the services it provides its citizens and have unquestionably impacted the budgetary priorities of the State of New York. However, because Defendant fails to satisfy both elements of the Rowland test, Defendant’s executive orders cannot meet the “legislative capacity” standard for the purposes of this motion.
Even assuming the Court were to find that Defendant’s actions were taken in a legislative
capacity, Plaintiffs’ desired injunctive order is requested in a purely non-legislative capacity.
There is “no reason why a defendant should be entitled to legislative immunity simply because
the harm alleged originated, in some sense, with a legislative act.”
Rowland
,
Accordingly, the Court finds that Defendant is not entitled to legislative immunity under the facts of this case.
2. Manifold-Restraints Analysis Under
Jacobson
“[T]he liberty secured by the Constitution of the United States to every person within its
jurisdiction does not import an absolute right in each person to be, at all times and in all
circumstances, wholly freed from restraint.”
Jacobson v. Massachusetts
,
To the extent that Plaintiffs argue that
Jacobson
does not apply to the Free Exercise
Clause under Second Circuit precedent, the Court disagrees. Plaintiffs position is based on one
section from a distinguishable Second Circuit case.
See Phillips v. City of New York
, 775 F.3d
538, 543 (2d Cir. 2015) (reasoning that
Jacobson
does not control plaintiffs’ free exercise claim
because, at the time of the
Jacobson
decision, the Free Exercise Clause was not yet binding on
the states). Contrary to Plaintiffs’ position, the Second Circuit explicitly stated that it followed
the reasoning of
Jacobson
when concluding that a mandatory vaccination policy, as a condition
for admission to school, did not violate the Free Exercise Clause.
Phillips
,
Recently, the Supreme Court denied injunctive relief related to a California-based
executive order that limited religious gatherings, finding that the restrictions were consistent with
the Free Exercise Clause of the First Amendment.
S. Bay United Pentecostal Church v.
Newsom
,
“
Jacobson
instructs that
all
constitutional rights may be reasonably restricted to combat a
public health emergency.”
In re Abbot
,
The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ [ Jacobson , 197 U.S.] at 31. Courts may ask whether the state’s emergency measures lack basic exceptions for ‘extreme cases,’ and whether the measures are pretextual—that is, arbitrary or oppressive. Id. at 38. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id.
at 28, 30.
In re Abbot
,
In this case, Plaintiffs do not dispute that Defendant has the right to issue executive
orders barring overnight camps from opening during the summer of 2020 or that these orders
have a real or substantial relation to the protection of public health. Instead, Plaintiffs argue that
Defendant’s actions unconstitutionally infringed on their First and Fourteenth Amendment rights
in that they were both arbitrary and oppressive. However, following Chief Justice Roberts’
guidance, the Court will not second-guess the wisdom or efficacy of Defendant’s emergency
measures to combat a public health crisis, unless the Court finds that the actions taken do not
lack a real or substantial relation to the public health crisis and are not, beyond all question, a
plain, palpable invasion of rights secured by the fundamental law.
S. Bay
,
a. Real or Substantial Relation
Under the facts of this case, the Court finds that Defendant’s decision to close overnight
camps for the summer of 2020 had a “real or substantial relation” to the public health crisis.
“The precise question of when restrictions on particular social activities should be lifted during
the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.”
S.
Bay
,
Although the daily number of positive COVID-19 cases are decreasing in New York State, the number of individuals infected throughout the state has continued to increase, albeit at a drastically decreased rate. (Dkt. No. 17, Attach. 3, at ⁋ 27 -28.) What is particularly worrisome is the recent dramatic rise in COVID-19 cases and deaths in several other states, which provides ample warning that a momentary decrease in the daily rate of infection does not mean that it cannot increase in the future in New York State if the conditions imposed by Defendant’s executive orders are not sufficiently followed.
Defendant’s actions are substantially related to limiting the spread of the COVID-19
virus for several reasons. First, the COVID-19 virus “spreads through droplets released into the
air when an infected person coughs or sneezes.” (Dkt. No. 17, Attach. 3, at ⁋ 10.) One of the
best methods to limit one’s exposure to COVID-19 is through social distancing, where people
keep at least six feet away from one another and limit close contact with others outside the
individual’s household. (
Id.
at ⁋ 13.) This includes avoiding groups and crowded places. (
Id
.) Dr. Howard Zucker, the New York State Health Commissioner, explained that overnight camps,
unlike day camps or childcare facilities, “are a difficult setting to manage social distancing and
face covering and infection control practices.” (
Id
. at ⁋ 62.) “Overnight camps have congregate
settings and sleeping arrangements in close quarters that present too many risks.”
[8]
(
Id
.)
Defendant also argues that activities inherent to overnight camps, such as employing shared
sleeping areas in which groups of campers are in a confined space together for long hours night
after night, conflict with the principals of social distancing and other principals that have helped
New York limit the transmission of the COVID-19 virus. (
Id.
at ⁋ 63.) Although Plaintiffs disagree with Health Commissioner Zucker’s conclusions that
overnight camps present a dangerous setting for the transmission of the COVID-19 virus when
certain precautions are taken (Dkt. No. 20, Attach. 1, at ⁋ 2) , the Court will not second-guess
Defendant on the wisdom or efficacy of his emergency measures to fight the spread of the
COVID-19 virus.
S. Bay
,
b. Plain, Palpable Invasion Beyond All Question Defendant’s executive orders do not, beyond all question, amount to a “plain, palpable invasion” of Plaintiffs’ constitutional rights, as will be discussed more thoroughly below in Part III.A.3.a. and Part III.A.3.b. of this Decision and Order.
c. Limits of Government Authority in a Pandemic
In light of the above analysis, it is important to emphasize that Defendant may not
eliminate or circumvent an individual’s constitutional rights merely because he is responding to a
public health crisis. “[T]he police power of a state . . . may be exerted in such circumstances, or
by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the
courts to prevent wrong and oppression.”
Jacobson
,
For all of these reasons, the Court concludes that Plaintiffs are unlikely to succeed on their claims that Defendant’s executive orders violated their constitutional rights.
3. Traditional Constitutional Analysis Even if the Jacobson standard was inapplicable, the Court finds that Defendant’s executive orders would still likely survive Plaintiffs’ constitutional challenges.
a. Free Exercise of Religion
The Supreme Court has established “the general proposition that a law that is neutral and
of general applicability need not be justified by a compelling governmental interest 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
,
The Supreme Court has “never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”
Smith
,
i. Neutrality
“To determine neutrality, we begin with the statute’s text, ‘for the minimum requirement
of neutrality is that a law does not discriminate on its face.’”
Cent. Rabbinical
,
Here, the Court finds that Defendant’s executive orders are neutral. Executive Order 202.8 barred, among other things, an in-person workforce for all nonessential businesses and not- for-profit entities, while Executive Order 202.10 cancelled or postponed the non-essential gatherings of individuals of any size for any reason. (Dkt. No. 7, Attach. 4, at 18-23.) Defendant used broad language throughout his executive orders and intended them to apply to all facets of society. By using the word “all,” Defendant’s executive orders, on their face, did not discriminate against Plaintiffs.
However, the facial neutrality of Defendant’s executive orders is not determinative. Historically, Defendant has been granted the authority to respond to imminent threats to the health of the citizens of New York. N.Y. Exec. Law Art. 2-b. “Whenever the governor . . . finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately, he shall declare a disaster emergency by executive order.” N.Y. Exec. Law § 28(1). Here, Defendant issued Executive Order 202, declaring a state of disaster emergency throughout New York State. (Dkt. No. 7, Attach. 4, at 2-4.) By declaring a state of disaster emergency, Defendant acted pursuant to the authority historically bestowed on him by the New York State Constitution.
The Court turns next to the series of events and legislative history factors. Because the events leading to the enactment of Defendant’s executive orders in question have been thoroughly recounted by numerous other courts, the Court will make only a few observations on the subject. One factor courts find relevant in these circumstances is the lack of legislative or administrative history regarding the government’s restriction. Here, in March 2020, the United States, along with the rest of the world, began fighting the COVID-19 virus. Labelling the spread of the virus a “Public Health Emergency of International Concern” Defendant issued Executive Order 202 on March 7, 2020, declaring a state of disaster emergency throughout New York State. ( Id .) Additionally, the Court finds that the legislative or administrative history factor is irrelevant to the current case because Defendant’s executive orders lack such a history.
Plaintiffs argue that Defendant’s executive orders are not neutral because his refusal to allow overnight camps to open effectively targets Jewish overnight camps (given that almost all of the secular or non-Jewish overnight camps had already decided they would not open in the summer of 2020 by the time Defendant and Health Commissioner Zucker specifically clarified on June 12, 2020, that overnight camps would not be allowed to open). Although it is true that “[t]he effect of the law in its real operation is strong evidence of its object,” it is likewise true that “adverse impact will not always lead to a finding of impermissible targeting.” Lukumi , 508 U.S. at 535. Plaintiffs have provided no factual allegations or evidence to indicate that the fact that only Jewish overnight camps have continued to plan to open for the summer leads to the conclusion that Defendant’s executive orders have targeted the Jewish faith. To the contrary, it is undisputed that Defendant’s ban on overnight camps applies equally to all such camps, regardless of the camps’ religious (or secular) nature. The fact that Plaintiffs have maintained a hope and willingness to operate or send their children to overnight camps this summer longer than most persons involved with secular or non-Jewish overnight camps does not somehow turn Defendant’s facially neutral executive order into impermissible targeting.
Overall, Plaintiffs have failed to show that Defendant’s executive orders were taken because of, not merely in spite of, their religious practice. Id . at 540. In addition to being facially neutral, the Court finds that Executive Orders 202.8 and 202.10 were substantively neutral.
ii. General Applicability
“The general applicability requirement prohibits the government from ‘in a selective
manner impos[ing] burdens only on conduct motivated by religious belief.’”
Cent. Rabbinical
Cong.
,
A law that might be generally applicable on its face can be made not generally applicable
where “the State has in place a system of individual exemptions,” but it “refuse[s] to extend that
system to cases of ‘religious hardship’ without compelling reason.”
See Litzman v. New York
City Police Dept.
, 12-CV-4681,
Plaintiffs fail to elaborate on how they will ensure that the individual campers and staff will enforce social distancing protocols among the individuals in their sleeping quarters, or how communal areas such as bathrooms and dining facilities will implement the appropriate safety measures. During oral argument, Plaintiffs conceded that several of the overnight camps utilize cabins for housing and could have anywhere from eight to twelve individuals sharing an enclosed space. [9] (Hearing Transcript.) The Court notes that cabins traditionally consist of one large room that can accommodate a large group of people who share a living space while higher education dormitories range in size and space and typically consist of a large building with numerous separate rooms that individually accommodate a smaller number of people than do cabins. Also traditionally, dormitories hold one to four people per room, and depending on the dormitory, can even have separate bathrooms for each individual. Although Plaintiffs acknowledged that the number of campers assigned to a cabin may have to be smaller to abide by social distancing practices, the Court concludes that the overnight camps’ cabins are not comparable to higher education dormitories.
Plaintiffs also argue that Defendant’s exemptions for activities such as day camps and childcare facilities are comparable conduct to overnight camps. Try as the Court might to sincerely understand Plaintiffs’ analogy, the Court must ultimately admit that Plaintiffs’ analogy is weak. Although day camps and childcare facilities have congregate settings, they are significantly more limited than those settings present in overnight camps. Day camps’ congregate settings are traditionally limited to the dining facility, where campers usually [9] The Court notes that, despite having been asked about the details of this subject during the hearing, Plaintiffs have (other than estimate the upper and lower ranges of the number of campers who would, on average, sleep in cabin) not provided the Court with evidence of that fact, or of even representations of the dimensions of the cabins and proximity of beds. congretate for just one meal a day, as compared to overnight camps where campers traditionally congregate for three meals a day and then congregate again (this time with a smaller group) for approximately eight hours in an enclosed area, usually for weeks on end. By nature, day camps and childcare facilities provide less opportunity for the transmission of the COVID-19 virus simply because the individual attendees spend significantly less time with their fellow campers as compared to overnight camps. As the State argues, groups of individuals contained within a confined sleeping area each night runs contrary to the public health principals that have helped New York State substantially reduce the transmission of the COVID-19 virus. (Dkt. No. 25, Attach. 1, at ⁋ 3.)
Moreover, Defendant argues that overnight camps are uniquely situated as potential vectors for the spread of the COVID-19 virus because overnight camps pose a great risk not only within itself, but to the local communities as well. This is because, unlike day camps or childcare facilities, where travel by campers is necessarily limited to a reasonable distance due to the need for them to return home at the end of the day, overnight camps involve significant long- distance travel and an influx of people from multiple areas to a more remote location where those campers will become a part of the community, from a practical standpoint, for a significant period of time. This can create burdens on local resources that are not present with day camps or childcare facilities. For example, Defendant cites to the circumstances in Sullivan County, located in the Catskills region of New York State, where Defendant estimates that approximately sixty-two percent of the Je wish overnight camps are located. (Dkt. No. 25, Attach. 1, at ⁋⁋ 9 - 14.) According to Defendant, Sullivan County has only one hospital, with two locations throughout the entire county, in addition to ten Article 28 diagnostic treatment centers and hospital extension clinic sites. ( Id. at 10, 13.) In total, Sullivan County has approximately 169 licensed beds, thirteen intensive-care-unit beds, and fifteen certified beds that can provide both acute and subacute rehabilitation services. ( Id. at 11-12.) At oral argument, Plaintiffs explained that in a usual summer, approximately forty-two thousand campers attended approximately fifty to sixty Jewish overnight camps located in New York State. (Hearing Transcript.) Although a significant drop off in these numbers is expected due to a truncated summer and concerns over the COVID-19 virus (Hearing Transcript), should an outbreak occur at the camps, the situation could overrun the hospitals within Sullivan County and require hundreds of individual children to be quarantined at the individual camps, potentially hundreds of miles away from their families. As discussed above in Part III.A.3.a.iv. of this Decision and Order, Plaintiffs have failed to provide factual allegations or evidence regarding how they could avoid this screnario. Overall, the Court is unpersuaded that day camps pose a similar or greater risk than do overnight camps.
As a result, the Court finds that none of the specific explicit exemptions that Plaintiff mentions are sufficiently comparable to permitting an overnight camp for the purposes of a general-applicability analysis.
Plaintiffs also argue that Defendant created a de facto exemption from the executive
orders for the mass protests following the death of George Floyd in Minneapolis, Minnesota.
“Case law within [the Second] Circuit supports the notion that individualized de facto
exemptions can demonstrate that a challenged law is not generally applicable, and is therefore
subject to heightened scrutiny.”
Soos v. Cuomo
, 20-CV-0651,
Although the Court agrees that not taking enforcement measures against various
protestors (including those seeking refuge in enclosed theater and museum lobbies for
indeterminate periods of time) arguably indicates that Defendant created a de facto exemption to
the executive orders, the existence of an exemption is not by itself determinative, as discussed
above: the individualized exemptions must also be properly comparable to the challenged action,
suggesting discrimination.
See Soos
,
In this case, Defendant’s executive orders bar all overnight camps from opening during the summer of 2020. Instead of explaining why Jewish overnight camps are being treated differently than are secular overnight camps, Plaintiffs (with all due respect) confuse Defendant’s public comments seemingly showing support for the rights implicated by the mass protests over the death of George Floyd with Defendant’s alleged disregard for religion in failing to grant a similar exemption to Jewish overnight camps. (Dkt. No. 7, Attach. 2, at 9-11.) Simply stated, the Court finds that permitting children to sleep in groups in enclosed spaces for eight hours per day in overnight camps is not sufficiently comparable to permitting conscious adults to shelter for shorter periods of time inside theater and museum lobbies during mass protests. For example, at the time of this writing, although many mass protestors appear to have been violating social distancing protocols by engaging in various outdoor protests, no evidence has emerged that protestors have been so often assembling in such close proximity in enclosed spaces for such a long period of time that reasonably compares to the way children typically sleep in cabins at overnight camp. As discussed more thoroughly above in Part III.A.2.a. of this Decision and Order, overnight camps, unlike day camps or childcare facilities “are a difficult setting to manage social distancing and face covering and infection control practices.” (Dkt. No. 17, Attach. 3, at ⁋ 62.) Although mass protests may provide somewhat similar difficulties to manage social distancing and infection control practices, overnight camps “have congregate settings and sleeping arrangements in close quarters that present too many risks,” which causes those camps to be potentially more dangerous for the transmission of the COVID-19 virus, as compared to the mass protests. ( Id. ) Finally, Plaintiffs have provided no factual allegations or evidence to support their argument that businesses and non-profit organizations (such as theaters or museums) that temporarily open their lobbies (and their bathroom facilities) for public use generate the same or greater risk of transmission of the COVID-19 virus than overnight camps generate.
Additionally, even accepting the argument that Defendant’s failure to enforce the executive orders against the protests constitutes a de facto exemption, Defendant implored people to be cautious while protesting and advocated for individuals to wear a mask if they were going to participate in protests throughout New York State. (Dkt. No. 7, Attach. 8, at 16.) However, as already discussed, such caution and wearing of masks is much less feasible in the setting of an overnight camp, where children are spending all day and night in each other’s company for weeks at a time, and where situations arise in which even wearing of a mask might not be possible sometimes (such as while sleeping). As a result, the Court finds that the mass protests are not sufficiently comparable to overnight camps to allow Plaintiffs to show that the executive orders are not generally applicable because of the existence of exemptions. iii. Rational Basis
Having found that Defendant’s executive orders are neutral and generally applicable, the Court finds Defendant’s actions are subject to rational basis review and thus need only be rationally related to a legitimate government interest. New Hope Family Servs. Inc. v. Poole , 387 F. Supp. 3d 194, 216 (N.D.N.Y. 2019) (D’Aogstino, J.). For many of the reasons already discussed above, Defendant’s interest in preventing the spread of COVID-19 is a legitimate interest, and that interest is rationally related to the prohibition on overnight camps: it is entirely legitimate to send campers home at night because the alternative (letting them stay overnight) does not sufficiently ensure (a) that the campers will indeed self-quarantine for two weeks after negative test (setting aside the fallibility of the tests), or (b) that campers and staff do not violate quarantine protocols while at camp.
Accordingly, for all of these reasons, the Court finds that Plaintiffs have failed to show that they are likely to succeed on the merits of their Free Exercise Clause claim.
iv. Strict Scrutiny In the alternative, even if strict scrutiny were to apply, Plaintiffs have not shown a likelihood of success on the merits of their Free Exercise Clause claim. Defendant argues that, even if the ban (which is certainly neutral) is not generally applicable, it meets the strict scrutiny test because the strength of the compelling state interest here (i.e., the avoidance of COVID-19) lightens Defendant’s burden to narrowly tailor the rule in pursuit of that interest. [10] The Court has found no case for the point of law that a stronger interest lessens the need to narrowly tailor a rule in furtherance of that interest. However, even setting aside the question of whether the compelling state interest here is strong or really strong, Defendant has shown that the ban is sufficiently narrowly tailored to serve that interest.
Plaintiffs argue that the ban is not narrowly tailored because their protocols would make overnight camping safe enough to sufficiently satisfy Defendant’s compelling interest, and thus complete closure is more restrictive than necessary. But Plaintiffs' argument assumes their protocol will be followed. As a practical matter, the protocol is so dependent on voluntarily compliance as to not be reliable, or not “feasible” in the language of the relevant standard. For example, it is uncertain how Plaintiffs could ensure that new campers comply with the self- quarantine requirement for two weeks before entering the camp, or how Plaintiffs could ensure that campers and staff will at no point leave the camp or come in contact with an outsider who enters the camp.
Moreover, Plaintiffs’ argument ignores the fact that, were the Court to grant Plaintiffs’
requested relief, the ban on overnight camps would have to be lifted not only for Jewish
overnight camps, and not only for all religious overnight camps, but also for all
secular
overnight camps located throughout New York State. To say otherwise would be to contradict
the Supreme Court’s decision in
Everson v. Bd. of Educ. of the Township of Ewing
.
Finally, Plaintiffs’ argument ignores the fact that their protocol does not adequately address how the overnight camps would handle sick individuals who are required to self- quarantine far away from hospitals. Generally, overnight camps do not employ the medical staff necessary to manage a camp-wide quarantine. (Dkt. 25, Attach 1, at ⁋ 22.) Although Plaintiffs argue that Jewish overnight camps would have rigorous training on health and safety protocols developed from physicians and health policy professionals (Dkt. No. 7, Attach 2, at 15-16), Defendant’s executive orders apply to all overnight camps throughout the state, which may not have the appropriate resources. Overnight camps are also generally a significant distance away from hospitals and located in remote areas with limited healthcare access. (Dkt. No. 25, Attach. 1 at ⁋⁋ 15, 22.) Due to the general remoteness of overnight camps, a sudden outbreak would put great strain on healthcare infrastructure and resources of smaller rural hospitals, which have significantly fewer ICU beds as compared to more urban areas. ( Id , at ⁋ 15.)
In sum, the lessening of these assurances compels the diminishment of safety in the overnight camp (where campers could be exposed to the COVID-19 virus from seven to eleven bunkmates for eight hours per night, should what Plaintiffs’ call a “bubble” spring a leak). required to quarantine for a fourteen day period, the Court expresses no opinion as to the constitutionality of this order. Exec. Order. 205 (2020), https://www.governor.ny.gov/news/no- 205-quarantine-restrictions-travelers-arriving-new-york (last accessed July 4, 2020).
Simply stated, Defendant’s ban appears to be at least as safe as Plaintiffs’ protocol, rendering it narrowly tailored.
b. Due Process Rights of Parents Parent-Plaintiffs also argue that Defendant’s executive orders unconstitutionally infringe on their substantive due process right to control the education and upbringing of their children under the Fourteenth Amendment. (Dkt. No. 7, Attach. 2, at 25-26.)
To show a violation of substantive due process, a plaintiff must show that (a) he or she
has a valid liberty or property interest, and (b) the defendant infringed on the liberty interest in an
arbitrary or irrational manner.
Harlan Assocs. v. Vill. of Mineola
,
A “[s]ubstantive ‘due process’ analysis must begin with a careful description of the
asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care
whenever we are asked to break new ground in this field.’”
Reno v. Flores
,
However, as noted above, showing the existence (and even the infringement) of a right is
not sufficient to merit success on a substantive due process claim; Plaintiffs must also show that
Defendant infringed on that right in an arbitrary manner.
See Calicchio v. Sachem Cent. Sch.
Dist.
, 14-CV-5958,
In particular, Defendant has shown that permitting overnight camps to open during the summer of 2020 would jeopardize the health and safety of each child who attended an overnight camp. The Court recognizes that at the time of this writing, we are already in the heart of summer. Practically speaking, overnight summer camps could be open for approximately four to six weeks for the summer of 2020, after considering the logistics of registering participants and staff, as well as the beginning of the academic school year. The Court is extremely sympathetic to Parent-Plaintiffs’ sincerely held religious beliefs but it also must acknowledge the extenuating circumstances of the COVID-19 virus and its impact throughout the world. Although the State of New York has made progress in limiting the transmission of the virus in recent weeks, the recent resurgence of positive COVID-19 cases in several states raises concerns and is a painful reminder that the fight is far from over. (Dkt. No. 25, Attach. 1, at ⁋⁋ 16 -17.) Such extenuating circumstances make it unlikely that Plaintiffs will be able to meet their burden to show that Defendant’s actions were arbitrary or conscious shocking.
For all of these reasons, the Court finds that Parent-Plaintiffs are unlikely to succeed on the merits of their due process claim.
c. Plaintiffs’ “Hybrid” Claim
Contrary to Defendant’s argument, the Second Circuit has recognized the existence of
“hybrid” claims that implicate the Free Exercise Clause.
Leebaert
,
As discussed above in Parts III.A.3.a. and III.A.3.b. of this Decision and Order, Plaintiffs have failed to show that Defendant’s executive orders violated the Free Exercise Clause because Defendant’s executive orders were neutral and generally applicable, and in the alternative, were narrowly tailored to address a compelling government interest. The Court also concluded above in Part III.A.3.b. of this Decision and Order that Parent-Plaintiffs’ fundamental right to control the education and upbringing of their children was not violated by Defendant’s executive orders because Defendant did not arbitrarily interfere with Parent-Plaintiffs’ ability to control the education and upbringing of their children. Having already evaluated and found that each individual claim would fail under rational basis test, the Court employs the Second Circuit’s reasoning in its refusal to apply a heightened standard of review to Plaintiffs’ “hybrid” claim. As a result, the Court relies on its analysis above in Part III.A.3.a. and Part III.A.3.b. of this Decision and Order in its finding that Plaintiffs have failed to show that they will likely succeed on their “hybrid” claim.
Accordingly, for all of these reasons, the Court rejects Plaintiffs’ argument that they have demonstrated a likelihood of success on the merits for each of their claims.
B.
Irreparable Harm
After carefully considering the matter, the Court find that Plaintiffs have sufficiently
demonstrated irreparable harm. “The loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns
,
In this case, Plaintiffs are entitled to the presumption of irreparable harm. Contrary to
Defendant’s argument, Defendant’s executive orders have directly limited Plaintiffs Free
Exercise rights under the First Amendment by barring overnight camps for the summer of 2020.
As discussed above in Part III.A.3.a. of this Decision and Order, Defendant’s executive orders
were an incidental burden on Plaintiffs’ Free Exercise rights. Regardless of the extent of the
burden, Defendant’s executive orders are still the source of the infringement on Plaintiffs’ First
Amendment rights. The Court has found no Second Circuit case to suggest that a plaintiff’s
irreparable harm depends on the extent of the burden. Because Defendant’s executive orders are
the source of the alleged loss of Plaintiffs’ First Amendment freedoms, Defendant’s executive
orders directly limit Plaintiffs’ constitutional rights. Additionally, because summer has already
begun and resolution of Plaintiffs’ claims through litigation would be unlikely to happen during
the span of time in which the overnight camps would have been open, a denial of injunctive
relief will in all likelihood result in Plaintiffs being unable to operate or send their children to
overnight camps in 2020, effectively depriving them of their ultimate relief they seek.
See
Allstate Ins. Co. v. Harvey Family Chiropractic
,
For these reasons, the Court concludes that Plaintiffs have shown that they will likely suffer irreparable harm if denied injunctive relief.
C. Balance of Equities and Public Interest
Lastly, the Court finds that, in the alternative, the public interest would be disserved by the relief requested by Plaintiffs. Although Plaintiffs have demonstrated that they will likely suffer irreparable harm in the absence of injunctive relief, a careful balancing of the equities nevertheless favors Defendant. For example, Defendant must consider the impact of all overnight camps, not just the 50-60 Jewish overnight camps that Plaintiffs claim are impacted by Defendant’s executive orders. (Hearing Transcript.) As discussed more thoroughly above in Part III.A.3.a.ii. of this Decision and Order, enjoining Defendant’s executive orders would encourage both secular and non-secular overnight camps alike to open, even for a truncated period, and could encourage a significant influx of individuals from outside of New York State.
Permitting all overnight camps to open for the summer of 2020 would also encourage the multiplication and diffusion of areas of New York State into which both in-state and out-of-state children could travel. This is because secular and non-Jewish religious overnight camps would be permitted to open all across New York State, even in regions that have not yet reached Phase Four of Defendant’s reopening plan. Although Plaintiffs argue that few if any secular or non- Jewish religious overnight camps in New York will in fact attempt to open, the Court is not convinced of that fact based on the evidence presented.
Finally, permitting all overnight camps to open would put an immense strain on local governments and rural areas with limited healthcare resources. Were the Court to enjoin Defendant’s executive orders, individuals located in more densely populated areas (or “hot spots” for the COVID-19 virus) would likely be traveling to rural areas with already limited healthcare resources. (Hearing transcript.) Not only would this potentially strain the infrastructure of the rural regions within the District by forcing these counties to further extend their already limited resources but it would further strain the local governments that are traditionally tasked with ensuring that the overnight camps are abiding by the strict health and safety protocols that would be required. (Hearing transcript.)
Plaintiffs argue that the balance of hardships favors Jewish overnight camps because they will implement rigorous health and safety protocols that will safeguard campers and staff from the COVID-19 virus through regular screening and subjecting symptomatic individuals to immediate testing. (Dkt. No. 7, Attach. 2, at 29-30.) However, testing is fallible. See Lauren M. Kucirka, Stephen A. Lauer, Oliver Laeyendecker, Denali Boon, Justin Lessler, Variation in False-Negative Rate of Reverse Transcriptase Polymerase Chain Reaction-Based SARS-CoV-2 Tests by Time Since Exposure , Annals of Internal Medicine (published online ahead of print May 13, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7240870/ (detailing a Johns Hopkins study that found that testing people for the COVID-19 virus too early in the course of infection is likely to result in a false negative test, even though the individual may eventually test positive for the COVID-19 virus). As alluded to above, encouraging travel from more densly populated areas throughout New York State that have been more heavily impacted by the COVID-19 virus and from several neighboring states has the potential to catastrophically eliminate the progress New York State has made to date in limiting the transmission of the COVID-19 virus and to create “hot spots” in areas where the overall level of the virus has been relatively low.
At this time, the Court finds that granting injunctive relief to open overnight summer
camps runs contrary to the public interest in stopping the spread of the COVID-19 virus.
Although “securing First Amendment rights is in the public interest,”
N.Y. Progress & Prot. PAC
v. Walsh
,
ACCORDINGLY , it is
ORDERED that Plaintiffs’ motion for a preliminary injunction (Dkt. No. 7) is DENIED . Dated: July 6, 2020
Syracuse, New York
_____________________________ Hon. Glenn T. Suddaby Chief U.S. District Judge
Notes
[1] Plaintiffs’ initially filed a motion for a temporary restraining order, but at the beginning of the motion hearing on June 30, 2020, the Court proposed allowing the parties to supplement the record and argument to address the application for preliminary injunctive relief without requiring an additional evidentiary hearing. (Hearing Transcript.) The parties agreed to the Court’s proposed course of action, obviating the need for the Court to consider Plaintiffs’ motion for a temporary restraining order. Although Defendant’s decision to prohibit overnight children’s camps applies to all
[2] overnight children’s camps ( Dkt. No. 1 at ⁋ 52), Plaintiffs argue that Defendant’s decision essentially affects only Jewish overnight camps because the decision was not announced until after almost all of the non-Jewish overnight camps in New York State had decided to close during the summer of 2020. (Dkt. No. 7, Attach. 2 at 11.)
[6] The Court notes that, under the Second Circuit’s formulation of this standard, the
requirement of a balance of
hardships
tipping
decidedly
in the movant’s favor is added only to
the second part of the first element (i.e., the existence of a sufficiently serious question as to the
merits of the case to make it a fair ground for litigation), and not also to the first part of the first
element (i.e., the existence of a likelihood of success on the merits), which (again) requires
merely a balance of
equities
(i.e., hardships and benefits) tipping in the movant’s favor.
See
Citigroup Global Markets, Inc.
,
[7] Alternatively, in such a circumstance, the “clear or substantial likelihood of success”
requirement may be dispensed with if the movant shows that “extreme or very serious damage
will result from a denial of preliminary relief.”
Citigroup Global Markets, Inc.
,
[8] Defendant further cites to a 2009 influenza-like-illness outbreak that swept through New York State. (Dkt. No. 17, Attach. 3, at ⁋ 70.) Of the 1,600 reported cases, 1556 of those cases, or 94% of all influenza-like-illness reported from camps, occurred at overnight camps. ( Id. )
[10] Multiple courts that have considered the issue have concluded that “controlling the spread
of COVID-19 counts as a compelling interest.”
Cassell
,
[11] Although the Court is aware of Defendant’s Executive Order 205, which mandates that all travelers entering New York from a state with a positive test rate higher than ten per 100,000 residents, or higher than a 10% test positivity rate, over a seven day rolling average, will be