Agudath Isr. of Am. v. Cuomo

• Citation: 983 F.3d 620
• Decision Date: 28 December 2020
• Docket Number: 20-3590,Docket Nos. 20-3572
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

983 F.3d 620

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.

Docket Nos. 20-3572

20-3590

United States Court of Appeals, Second Circuit.

Argued: December 18, 2020

Decided: December 28, 2020

Avi Schick (W. Alex Smith, Misha Tseytlin, on the brief), Troutman Pepper Hamilton Sanders LLP, New York, NY & Chicago, IL, for Plaintiffs-Appellants in 20-3572.

Randy M. Mastro (Akiva Shapiro, William J. Moccia, Lee R. Crain, on the brief), Gibson, Dunn & Crutcher LLP, New York, NY, for Plaintiff-Appellant in 20-3590.

Brian D. Ginsberg (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, Dustin J. Brockner, Assistant Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, Albany, NY, for Defendant-Appellee in 20-3572 & 20-3590.

Before: Livingston, Chief Judge, Park and Menashi, Circuit Judges.

Park, Circuit Judge:

In response to the COVID-19 pandemic, the Governor of New York issued an executive order limiting the maximum allowable occupancy in "houses of worship" in certain "zones" to 10 or 25 people. Other businesses that the Governor considers to be "essential," however, face no such restrictions. Appellants Roman Catholic Diocese of Brooklyn (the "Diocese") and Agudath Israel of America ("Agudath Israel") seek to enjoin the Governor from enforcing the capacity limits, which they allege violate the Free Exercise Clause of the First Amendment.

The Supreme Court already found that Appellants have made "a strong showing" that their claim is likely to prevail. See Roman Cath. Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 66, 208 L.Ed.2d 206 (2020). We agree. The Governor's order is subject to strict scrutiny because it is not neutral on its face and imposes greater restrictions on religious activities than on secular ones. We thus REVERSE and REMAND in part, directing the district courts to enjoin the Governor from enforcing the Order's 10-and 25-person capacity limits. We VACATE and REMAND in part for the district court to determine in the first instance whether the 25% and 33% capacity limits can satisfy strict scrutiny.

I. BACKGROUND

A. COVID-19 and the Governor's Response

More than 36,000 New Yorkers have died from COVID-19, and New York has had the second-highest number of deaths per capita of any state.¹ On March 7, 2020, Governor Cuomo declared a disaster emergency in the State, which allows him to exercise extraordinary executive powers. See N.Y. Exec. Law § 28. He can "temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency," and can "issue any directive ... necessary to cope with the disaster." Id. § 29-a. Suspensions and directives under this law expire after 30 days, but the Governor may renew them an unlimited number of times. Id. The legislature of New York can terminate suspensions and directives "by concurrent resolution," but the Governor's actions pursuant to Executive Law § 29-a do not otherwise require legislative consultation or approval. Id.

Governors have historically exercised this emergency authority in a limited and localized manner, most often in response to natural disasters such as severe storms or flooding.² Governor Cuomo's executive orders during the COVID-19 pandemic, however, have been unprecedented in their number, breadth, and duration. From March to December 2020, he has issued almost 90 executive orders relating to the pandemic.³ Those orders affect nearly every aspect of life in the State, including restrictions on activities like private gatherings and travel.⁴

B. Executive Order 202.68

In response to a rise in COVID-19 cases in certain "hot spots" in the State, on October 6, 2020, the Governor issued Executive Order 202.68 (the "Order"), the source of the restrictions challenged here.⁵ The Order authorizes the New York State Department of Health to "determine areas in the State that require enhanced public health restrictions," classifying those areas as red, orange, or yellow zones, and imposes zone-specific restrictions on various activities.

In red zones, the Order prohibits all "[n]on-essential gatherings," requires all "non-essential businesses" to "reduce in-person workforce by 100%," and allows restaurants to remain open "for takeout or delivery only." The Order imposes no additional restrictions or limitations on other businesses or gatherings, however, and schools may continue in-person instruction.⁶ The Order specifies only one other category of entities in red zones: "[H]ouses of worship," which are subject to a capacity limit of "25% of maximum occupancy or 10 people, whichever is fewer."

In orange zones, the Order limits "[n]on-essential gatherings" to 10 people and directs the closure of "certain non-essential businesses, for which there is a higher risk associated with the transmission of the COVID-19 virus," such as gyms and tattoo parlors. Restaurants may "provide outdoor service," all other businesses are again free to operate without additional restrictions other than those imposed by previous orders, and schools may remain open for in-person instruction, subject again to testing requirements. Again, "houses of worship" in orange zones are separately identified and subject to a capacity limit of "33% of maximum occupancy or 25 people, whichever is fewer."

In yellow zones, which are not at issue here, the Order limits "[n]onessential gatherings" to "no more than 25 people." Indoor dining is permitted at restaurants, and schools remain open. No additional restrictions are imposed on any businesses, whether "essential" or "non-essential." Once more, however, "houses of worship" are limited to "50% of [their] maximum occupancy."⁷

By its terms, the Order does not apply to "essential" businesses, which State guidance describes as those "providing products or services that are required to maintain the health, welfare and safety of the citizens of New York State."⁸ This category includes not only grocery stores and hospitals, but also many businesses with more questionable connections to "health, welfare, and safety"—including liquor stores, pet shops, and financial institutions providing "services related to financial markets."⁹ The Governor has neither explained the process by which he deemed some businesses "essential" nor identified evidence supporting the classifications. Importantly, the Governor has not asserted that his categorization of businesses as "essential" or "non-essential" was based on any assessment of COVID-19 transmission risk.

Before issuing the Order, the Governor made public statements indicating that the restrictions were motivated in part by concerns about religious gatherings. For example, he noted that the source of the first coronavirus hot spot in New York "was an Orthodox Jewish man who went to a temple" and observed that "Orthodox Jewish gatherings often are very, very large and we've seen what one person can do in a group."¹⁰ The Governor then said that he would be meeting with members of the "ultra-Orthodox [Jewish] community," and if they would "not agree to enforce the rules, then we'll close the institutions down." Id. One day later, he issued the Order.

Three days after issuing the Order, the Governor explained that it addresses "a predominantly ultra-orthodox cluster."¹¹ Five days later, he said the State was "having issues in the Orthodox Jewish community in New York, where because of their religious practices, ... we're seeing a spread."¹² He said that state-level enforcement was necessary because the "ultra-Orthodox communities ... are also very politically powerful."¹³

The Order was not accompanied by any contemporaneous explanation of its specific limits on houses of worship. In this litigation, however, the Governor offered declarations from Dr. Howard A. Zucker, Commissioner of the State Department of Health, and Dr. Debra S. Blog, Director of the Department of Health's Division of Epidemiology. The declarations explained that "large gatherings present the greatest risk for rapid and widespread transmission of the virus in a community," citing reports of "super-spreader events" at a church in Arkansas, a wedding in Maine, a religious service in India, and a choir practice in Washington. Joint App'x, No. 20-3590, at 312–18. Comparing religious gatherings to restaurants, the declarations also asserted that "the idea [of a religious service] is a group of people coming together as a community to interact and pray together," that "[g]enerally, the congregants are arriving and leaving at the same time and are together over an extended period of time," and that "[t]his type of close interaction, while having deep meaning for the congregants, poses a higher risk of transmission of the virus." Id. at 318. The declarations did not purport to assess the transmission risk of religious worship based on any data, much less to compare religious worship with "essential" activities, and they did not explain how the Governor arrived at the specific numerical and percentage capacity limitations in the Order.

The Governor initially designated restricted zones in Brooklyn and Queens in New York City, as well as in Broome, Orange, and Rockland counties. Since issuing the Order in October, the Governor has changed the zone designations at least nine times.¹⁴

C. Parties

1. Roman Catholic Diocese of Brooklyn

The Diocese of Brooklyn is a Roman Catholic diocese with 210 churches in Brooklyn and Queens. In 2019, the Diocese held approximately 1,000 Masses each Sunday, with an average weekly attendance of almost 230,000.

Since ...