Roman Catholic Diocese of Brooklyn v. Cuomo

• Decision Date: 16 October 2020
• Docket Number: 20-CV-4844 (NGG) (CLP)
• Parties: The ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK, Plaintiff, v. Governor Andrew M. CUOMO, in his official capacity, Defendant.
• Court: U.S. District Court — Eastern District of New York

495 F.Supp.3d 118

The ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK, Plaintiff,

v.Governor Andrew M. CUOMO, in his official capacity, Defendant.

20-CV-4844 (NGG) (CLP)

United States District Court, E.D. New York.

Signed October 16, 2020

Akiva Shapiro, William John Moccia, Lee Ross Crain, Randy M. Mastro, Gibson, Dunn & Crutcher LLP, New York, NY, for Plaintiff.

Seth J. Farber, N.Y.S. Office of the Attorney General, New York, NY, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff The Roman Catholic Diocese of Brooklyn, New York ("the Diocese") claims, under 42 U.S.C. § 1983, that Defendant Governor Andrew M. Cuomo's New Cluster Action Initiative, as enacted by New York Executive Order 202.68 in response to a recent spike in COVID-19 cases in certain areas of the state, violates the Free Exercise Clause of the First Amendment as applied to the Diocese's churches. The Diocese seeks a preliminary injunction to bar the enforcement of Executive Order 202.68 against it. (See Pl. Mot. for a Prelim. Inj. (Dkt. 3); Pl. Mem. in Supp. of Mot. ("Mem.") (Dkt. 4); Def. Mem. in Opp. to Mot. ("Opp.") (Dkt. 18); Pl. Reply (Dkt. 24).) For the reasons that follow, the motion is DENIED.

I. BACKGROUND¹

A. The COVID-19 Pandemic in New York

In the past seven months, more than 479,000 people in New York State have tested positive for COVID-19 and more than 25,000 people have died.² The most fortunate New Yorkers will remember always the devastation that the first wave of the pandemic wrought. Tens of thousands of others, disproportionately frontline workers, low income people, and people of color³ —or a combination thereof—will not. New York today is not like the New York of October 2019, but it is also a much different, and safer place than the New York of April and May 2020. That is due, in no small part, to the response of state and local governments, as well as the efforts of non-governmental institutions, like the Diocese.

New York was among the first states hit by the pandemic and, at its worst, the state had more COVID-19 cases than any single country in the world other than the United States. (Declaration of Dr. Debra S. Blog ("Blog Decl.") (Dkt. 20) ¶ 25.) Beginning in March 2020 and continuing up to the present day, Governor Cuomo has implemented a series of executive orders to combat the virus: from a facemask mandate, to closures of certain businesses and gathering places, to efforts to reduce density and promote social distancing, to cleaning protocols, and more. (See id. ¶¶ 29-36.) The efforts to "flatten the curve" have worked. In March and April 2020, over ten-thousand people were testing positive for COVID-19 in New York daily. (Id. ¶ 37, see also n. 2 supra.) By June 2020, daily positive cases were in the hundreds with a positivity rate around 1%, where it has remained thus far. (Id. ) On April 14, 2020 over one-thousand New Yorkers died of COVID-19, with a seven-day average of over nine-hundred deaths per day.⁴ On October 14, 2020, eleven New Yorkers died, with a seven-day average of nine deaths per day.⁵

For all of the State's leadership, COVID-19 safety protocols have been adopted and self-enforced, primarily and necessarily, within communities. And from the beginning, the Diocese has been an exemplar of community leadership. At each step, the Diocese—a division of the Roman Catholic Church that heads 186 parishes in Brooklyn and Queens—has been ahead of the curve, enforcing stricter safety protocols than the State required at the given moment. On March 16, 2020, the Diocese cancelled all public masses, although it was not required to until days later. (Declaration of Bishop Raymond F. Chappetto ("Chappetto Decl.") (Dkt. 5) ¶ 7; Blog Decl. ¶¶ 29-32.) The Diocese's churches did not hold in-person mass again until July, a week after the State permitted. (Chappetto Decl. ¶ 10.) Before reopening, the Diocese formed a committee chaired by Joseph Esposito, a career New York City public servant who has served as Chief of the Department of the New York City Police Department and as Commissioner of the New York City Office of Emergency Management. (Declaration of Joseph J. Esposito ("Esposito Decl.") (Dkt. 6) ¶ 1.) Based on the committee's recommendations, when the Diocese's churches finally reopened, they did so with rigorous safety protocols including:

• A 25% capacity limit, which survives to this day, even though under state law, churches were permitted to increase attendance to 33% of capacity when New York City entered "Phase 4" of the state reopening guidelines on July 20, 2020. (Chappetto Decl. ¶¶ 14, 16.)

• A mask requirement for any person entering a church.

• Strict seating protocols to keep parishioners six feet apart, including seating only in alternating pews.

• Hand sanitizer at every door as well as bulk cleaning supplies and cleaning protocols in every church.

• Prominent signage about safety protocols.

• Significant changes to the mass itself, including measures to reduce the mass's length and an order that communion would be received only by hand, meaning that the host would never be placed directly into a parishioner's mouth. Churches also eliminated altogether the wine, or Precious Blood, from communion.

(See Testimony of Bishop Chappetto ("Chappetto Tr.") at 13-20.) According to Bishop Chappetto, there has not been any COVID-19 outbreak in any of the Diocese's churches since they reopened. (Chappetto Decl. ¶ 15.)

B. New Cluster Action Initiative and Executive Order 202.68

Unfortunately, while New York has had success fighting the pandemic for the past few months, it is still with us, and positivity rates remain over 10% in 33 other states. (Blog Decl. ¶ 48.) In early October, the State noticed spiking COVID-19 positivity in certain geographic hotspots. On October 5, the State identified twenty problematic zip codes in which the average positivity rate was 5.5%, compared to 1.2% in the rest of the state. (Oct. 5, 2020 Stmt. of Gov. Cuomo (Dkt. 22-3) at 3.) And in discrete areas within those zip codes—areas that are now the subject of this litigation—positivity rates reached approximately 8% on October 8. (See Declaration of Dr. Howard Zucker ("Zucker Decl.") (Dkt. 29-1) ¶ 23.) On Tuesday, October 6, in response to those spikes, Governor Cuomo announced that a "New Cluster Action Initiative" ("Initiative") would go into effect as soon as the next day and no later than Friday, October 9. (See Oct. 6, 2020 Announcement ("Announcement") (Dkt. 7-4) at ECF pp. 15-17.) The Initiative was codified by Executive Order 202.68 ("EO"). (See EO 202.68 (Dkt. 12-1).)

Under the EO, which remains in effect, the New York State Department of Health ("DOH") is directed to "determine areas in the State that require enhanced public health restrictions based upon cluster-based cases of COVID-19" and to designate those areas as a "red zones", "orange zones", or "yellow zones" based on the state of the outbreak there. (Id. ) Red zones are areas where there is currently an active cluster of COVID-19 cases; orange zones are "warning zones"; and yellow zones are "precautionary zones." (Id. ) In "red zones":

Non-essential gatherings of any size shall be postponed or cancelled; all non-essential businesses, as determined by the Empire State Development Corporation based upon published guidance, shall reduce in-person workforce by 100%; houses of worship shall be subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer; any restaurant or tavern shall cease serving patrons food or beverage on-premises and may be open for takeout or delivery only; and the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.

In "orange zones":

Non-essential gatherings shall be limited to 10 people; certain non-essential businesses, for which there is a higher risk associated with the transmission of the COVID-19 virus, including gyms, fitness centers or classes, barbers, hair salons, spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis, and all other personal care services shall reduce in-person workforce by 100%; houses of worship shall be subject to a maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer ; any restaurant or tavern shall cease serving patrons food or beverage inside on-premises but may provide outdoor service, and may be open for takeout or delivery, provided however, any one seated group or party shall not exceed 4 people; and the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.

In "yellow zones":

Non-essential gatherings shall be limited to no more than 25 people; houses of worship shall be subject to a capacity limit of 50% of its maximum occupancy and shall adhere to Department of Health guidance; any restaurant or tavern must limit any one seated group or party size to 4 people; and the Department of Health shall issue guidance by October 9, 2020 regarding mandatory testing of students and school personnel, and schools shall adhere to such guidance.

(Id. (emphasis added).) DOH initially identified five counties experiencing an increase in COVID-19 cases for enhanced restrictions: Kings (Brooklyn), Queens, Broome, Orange, and Rockland. (Announcement at ECF p. 15.) All five counties are home to large Orthodox Jewish populations. (See Eric Levenson, Kristina Sgueglia, and Melanie Schuman, New York Sees Uptick in COVID-19 Cases in Orthodox Jewish Neighborhoods , CNN, Sept. 30, 2020 (Dkt. 7-7).)

At the press conference to announce the Initiative, Governor Cuomo said "the new rules are most impactful on houses of worship" and that the Initiative "is about mass gatherings" and "one of the prime places of mass gatherings are houses of worship." (Mem. at 14.) He also...