Ass'n of Jewish Camp Operators v. Cuomo

Decision Date06 July 2020
Docket Number1:20-CV-0687 (GTS/DJS)
Parties ASS'N OF JEWISH CAMP OPERATORS; Samuel Werzberger; Ariela Orkaby; Beth Statfield; and Gail Zahtz, Plaintiffs, v. Andrew M. CUOMO, Governor of the State of New York, in his official capacity, Defendant.
CourtU.S. District Court — Northern District of New York

TROUTMAN PEPPER, OF COUNSEL: BENNET J. MOSKOWITZ, ESQ., AVI SCHICK, ESQ., WILLIAM ALEXANDER SMITH, ESQ., Counsel for Plaintiffs, 875 Third Avenue, New York, NY 10022.

HON. LETITIA A. JAMES, Attorney General for New York, OF COUNSEL: CHRISTOPHER LIBERATI-CONANT, ESQ., Assistant Attorney General, Counsel for Defendants, The Capitol, Albany, NY 12224.

DECISION and ORDER

GLENN T. SUDDABY, Chief United States District Judge

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 Plaintiffsmotion 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, Plaintiffsmotion 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. )

B. Plaintiffs’ Motion
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 order3 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 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...

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