Agudath Israel of America The Roman Catholic Diocese v. Cuomo

20-3572; 20-3590
Agudath Israel of America; The Roman Catholic Diocese v. Cuomo
E.D.N.Y. – Bklyn.
20-cv-4834
Matsumoto, J.
20-cv-4844
Garaufis, J.
United States Court of Appeals
FOR THE
SECOND CIRCUIT
_________________
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.
Present:
Raymond J. Lohier, Jr.,
Michael H. Park,
Circuit Judges,
Jed S. Rakoff, *
Judge.
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. 20-3572
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. 20-3590
Governor Andrew M. Cuomo, in his official capacity,
Defendant-Appellee.
* Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,
sitting by designation.
These appeals, which are being heard in tandem, arise from the ongoing COVID-19 pandemic.
The pandemic has caused more than 25,000 deaths in New York State and more than 10,000 deaths
in Brooklyn and Queens alone. In response to a recent spike in cases concentrated in parts of
Brooklyn, Queens, and other areas, Governor Andrew Cuomo issued an executive order to limit
further spread of the virus in these COVID-19 “hotspots.”
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. Fed. R. App. P. 8(a)(1)(C). Instead, Appellant
moved for a preliminary injunction pending the district court’s final judgment. In its briefs and
at oral argument before this panel, moreover, Agudath Israel has not explained or otherwise
justified its failure to comply with the straightforward requirement of Rule 8(a). Agudath Israel
also has failed to demonstrate that “moving first in the district court would be impracticable,”
Fed. R. App. P. 8(a)(2)(A), or even futile, particularly in light of the fact that a full eleven days
elapsed after the district court’s ruling before Agudath Israel sought relief from this Court. We
deny Agudath Israel’s motion for these procedural reasons. See Hirschfeld v. Bd. of Elections in
N.Y., 984 F.2d 35, 38 (2d Cir. 1993).
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 awarded as of right.”
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). To obtain an injunction from a district
court, movants generally bear the burden of showing that (1) they are likely to succeed on the
merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the
balance of equities tips in their favor; and (4) an injunction is in the public interest. Id. at 20.
2
To obtain a stay of a district court’s order pending appeal, more is required, including a “strong
showing that [the movant] is likely to succeed on the merits.” New York v. U.S. Dep’t of
Homeland Sec., 974 F.3d 210, 214 (2d Cir. 2020). The motions at issue here seek a remedy still
more drastic than a stay: an injunction issued in the first instance by an appellate court. “Such a
request demands a significantly higher justification than a request for a stay because, unlike a
stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial
intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U.S.
996, 996 (2010) (quotation marks omitted).
“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 order subjects religious services to restrictions that are similar to or, indeed, less severe than
those imposed on comparable secular gatherings. See S. Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring) (denying emergency injunctive
relief to houses of worship that were subject to similar or less severe restrictions than those
applicable to comparable secular gatherings); see also Elim Romanian Pentecostal Church v.
Pritzker, 962 F.3d 341, 342, 346–47 (7th Cir. 2020) (upholding an order that capped religious
gatherings at ten people where the most comparable activities—those “that occur in auditoriums,
such as concerts and movies”— had been banned completely); cf. Commack Self-Serv. Kosher
Meats, Inc. v. Hooker, 680 F.3d 194, 210–11 (2d Cir. 2011) (holding that a Kosher food labeling
act was a neutral and generally applicable law subject to rational basis review because it applied
3
to “food purchased by individuals of many different religious beliefs” and impacted consumers
who purchased kosher products “for reasons unrelated to religious observance”).
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 pending appeal are DENIED. Among other infirmities in their arguments,
the Appellants have failed to meet the requisite standard for an injunction pending appeal. See
New York v. U.S. Dep’t of Homeland Sec., 974 F.3d at 214. It is further ORDERED that the
motion to expedite the appeals is GRANTED.
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
4
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
5
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’s public statements confirm that he intended to target the free exercise of
religion. The day before issuing the order, the Governor said that if the “ultra-Orthodox [Jewish]
community” would not agree to enforce the rules, “then we’ll close the institutions down.” 2 See
Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1731 (2018) (factors relevant
to the assessment of neutrality include “the specific series of events leading to the enactment or
1
See Guidance for Determining Whether a Business Enterprise Is Subject to a Workforce
Reduction Under Recent Executive Orders, N.Y. State Dep’t of Econ. Dev. (updated Oct. 23, 2020),
https://esd.ny.gov/guidance-executive-order-2026; Guidance for Determining Whether a Business
Enterprise Is Subject to a Workforce Reduction Under Executive Order 202.68, N.Y. State Dep’t of Econ.
Dev. (updated Oct. 7, 2020), https://esd.ny.gov/ny-cluster-action-initiative-guidance; Hearing Tr. at 81–82,
No. 20-cv-4844 (E.D.N.Y. Oct. 15, 2020).
2
Governor Cuomo Updates New Yorkers on State’s Progress During COVID-19 Pandemic, Off.
of the Governor (Oct. 5, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-
governor-cuomo-updates-new-yorkers-states-progress-during-1.
official policy in question” and “contemporaneous statements made by members of the
decisionmaking body”).
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.” 140 S. Ct. 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 against a substantive due process challenge.
Jacobson was decided before the First Amendment was incorporated against the states, and it “did
not address the free exercise of religion.” Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir.
2015). Indeed, the Court specifically noted that “even if based on the acknowledged police powers
of a state,” a public health measure “must always yield in case of conflict with . . . any right which
[the Constitution] gives or secures.” 197 U.S. at 25. Jacobson does not call for indefinite
3
See New York Covid Map and Test Count, N.Y. Times (updated Nov. 4, 2020),
https://www.nytimes.com/interactive/2020/us/new-york-coronavirus-cases.html.
2
deference to the political branches exercising extraordinary emergency powers, nor does it counsel
courts to abdicate their responsibility to review claims of constitutional violations.
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
4
For example, the Diocese presented evidence that, even before the order, it had voluntarily
restricted attendance to 25% of building capacity and required masks during Mass; it has also “agreed to
accept potential further restrictions (such as eliminating congregant singing and choirs during Mass) as a
condition of injunctive relief.” Appellant’s Br., No. 20-3590, at 4.
5
The district court in the Agudath Israel case found that plaintiffs had not demonstrated irreparable
harm because “the Orthodox community has previously complied with the total lockdown” and they could
“continue to observe their religion” with “modifications.” Tr. of Proceedings at 66, No. 20-cv-04834
(E.D.N.Y. Oct. 9, 2020). This was error, in light of which plaintiffs reasonably believed that another motion
for injunction in the district court would be futile. See, e.g., Hernandez v. Comm’r, 490 U.S. 680, 699
3
Finally, the balance of equities and public interest favor Appellants. The question is not
whether the State may take generally applicable public-health measures, but whether it may
impose greater restrictions only on houses of worship. It may not.
I respectfully dissent from the denial of the motions for injunctions pending appeal.
(1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,
or the validity of particular litigants’ interpretations of those creeds.”).
4