Case 1:20-cv-04844-NGG-CLP Document 15 Filed 10/09/20 Page 1 of 6 PageID #: 208
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THE ROMAN CATHOLIC DIOCESE OF
BROOKLYN, NEW YORK,
MEMORANDUM & ORDER
Plaintiff, 20-cv-4844(NGG)(CLP)
-against-
GOVERNOR ANDREW M. CUOMO in his
official capacity,
Defendant.
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ERIC KOMITEE, United States District Judge:
The Plaintiff in this case, the Roman Catholic Diocese
of Brooklyn, seeks a temporary restraining order and preliminary
injunction against Governor Cuomo’s Executive Order No. 202.68
(“Continuing Temporary Suspension and Modification of Laws
Relating to the Disaster Emergency”) (hereinafter the “Emergency
Order”). The Emergency Order significantly restricts attendance
at “houses of worship” in certain parts of New York, in response
to a large uptick in COVID-19 infection rates. 1 Plaintiff
contends that the Order, as applied to it, violates the Free
Exercise Clause of the First Amendment.
1 This case is assigned to the Honorable Nicholas G. Garaufis. Because
Judge Garaufis was unavailable to hear the case on an expedited basis, the
undersigned (as the assigned Miscellaneous Judge) heard oral argument, and
issued this Order shortly thereafter. The case will revert to Judge Garaufis
for all purposes going forward.
1
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Under Supreme Court precedent, the right to freely
exercise one’s religion does not exempt worshippers from
compliance with “neutral, generally applicable regulatory
law[s].” Emp. Div., Dep’t of Human Res. v. Smith, 494 U.S.
872, 880 (1990). But where laws single out acts of worship for
“distinctive treatment,” courts must apply the “most rigorous of
scrutiny.” Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 534 (1993). “When the government makes a
value judgment in favor of secular motivations but not religious
motivations, the government’s actions must survive heightened
scrutiny.” Fraternal Order of Police Newark Lodge No. 12 v.
City of Newark, 170 F.3d 359, 366 (3d Cir. 1999). The challenge
here is to determine whether this case is more like Smith — that
is, a neutral law that incidentally burdens religion — or more
like Lukumi and Fraternal Order, where religious worship was
being singled out for disfavored treatment.
On its face, the Executive Order applies differently
to religious exercise: it regulates houses of worship
explicitly, and applies a capacity limit unique to them. See
Emergency Order at 2 (“[H]ouses of worship shall be subject to a
capacity limit of 25% of maximum occupancy or 10 people,
whichever is fewer . . . .”). There are entities treated better
than religious institutions in the “red zone” — namely, entities
deemed “Essential Businesses” — but other entities treated more
2
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restrictively, such as restaurants and even schools, which are
closed entirely (for in-person activities). Id. at 2.
This is a difficult decision for two reasons. First,
this case is different from previous COVID-related Free Exercise
challenges in this Circuit, which involved the application of
facially neutral executive orders that nonetheless burdened
religion. See Ass’n of Jewish Camp Operators v. Cuomo, No. 20-
CV-0687, 2020 WL 3766496 (N.D.N.Y. July 6, 2020) (Free Exercise
challenge to executive order regarding summer camp attendance);
Soos v. Cuomo, No. 20-CV-0651, 2020 WL 3488742 (N.D.N.Y. June
26, 2020) (Free Exercise challenge to executive order banning
gatherings of fifty people or more). This Emergency Order, as
noted above, contains provisions made expressly applicable to
houses of worship. Second, the Governor of New York made
remarkably clear that this Order was intended to target a
different set of religious institutions. See “Governor Cuomo Is
a Guest on CNN Newsroom with Poppy Harlow and Jimmy Sciutto,”
October 9, 2020, https://www.governor.ny.gov/news/audio-rush-
transcript-governor-cuomo-guest-cnn-newsroom-poppy-harlow-and-
jim-sciutto (“[T]he cluster is a predominantly ultra-Orthodox
[Hasidic] community. . . . . [T]he issue is with that ultra-
Orthodox community.”). Plaintiff appears to have been swept up
in that effort despite having been mostly spared, so far at
least, from the problem at hand.
3
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Nevertheless, the government is afforded wide latitude
in managing the spread of deadly diseases under the Supreme
Court’s precedent. See Jacobson v. Massachusetts, 197 U.S. 11,
27, 31 (1905) (“[A] community has the right to protect itself
against an epidemic of disease which threatens its members,” and
judicial scrutiny should be limited to laws that have “no real
or substantial relation to” that purpose). For this reason,
courts have rejected similar claims under the Free Exercise
Clause. In Elim Romanian Pentecostal Church v. Pritzker, 962
F.3d 341, 344 (7th Cir. 2020), for example, the Court of Appeals
denied a similar injunction, holding that “[w]orship services do
not seem comparable to secular activities permitted under the
Executive Order, such as shopping, in which people do not
congregate or remain for extended periods.” Likewise, in South
Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020),
a majority of the justices declined to enjoin a California
Executive Order limiting attendance at religious institutions in
light of COVID-19. Relying on Jacobson, Chief Justice Roberts
noted that the “Constitution principally entrusts the safety and
health of the people to the politically accountable officials of
the States to guard and protect.” Id. at 1614 (cleaned up). On
that basis, he concluded that it was “quite improbable” that
restrictions like the one at issue here would be found
unconstitutional. Id.
4
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Relying on these cases, among others, another judge in
this District today upheld the Executive Order at issue here.
See Agudath Israel of America v. Cuomo, No. 20-cv-4834
(E.D.N.Y.) (Order of Judge Kiyo Matsumoto dated October 9,
2020). There are cases that have gone the other way in response
to similar provisions. See, e.g., Roberts v. Neace, 958 F.3d
409 (6th Cir. 2020); Maryville Baptist Church, Inc. v. Beshear,
957 F.3d 610 (6th Cir. 2020); Soos v. Cuomo, 2020 WL 3488742
(N.D.N.Y. June 26, 2020). But in light of Jacobson and the
Supreme Court’s recent decision in South Bay, it cannot be said
that the Plaintiff has established a likelihood of success on
the merits. See, e.g., Able v. United States, 44 F.3d 128, 130
(2d Cir. 1995). And given the severity and complexity of the
pandemic, it cannot be said, on this record, that the balance of
equities favors the Plaintiff. Winter v. Nat. Res. Def. Coun.,
Inc., 555 U.S. 7, 20 (2008) (2008).
Accordingly, Plaintiff’s motion for a temporary
restraining order is denied. Plaintiff may apply to Judge
5
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Garaufis for a preliminary injunction, as the record may be
developed more fully.
SO ORDERED.
/s Eric Komitee___________________
ERIC KOMITEE
United States District Judge
Dated: October 9, 2020
Brooklyn, New York
