App. No.

20A____

In the Supreme Court of the United States

AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF KEW GARDEN HILLS, AGUDATH

ISRAEL OF MADISON, RABBI YISROEL REISMAN, STEVEN SAPHIRSTEIN,
APPLICANTS,
v.
ANDREW M. CUOMO, in his official capacity as Governor of New York,
RESPONDENT.

EMERGENCY APPLICATION FOR WRIT OF INJUNCTION

RELIEF REQUESTED BY 3:00 PM ON FRIDAY, NOVEMBER 20, 2020

To the Honorable Stephen Breyer

Associate Justice of the Supreme Court of the United States and
Acting Circuit Justice for the Second Circuit

ERIC C. RASSBACH AVI SCHICK

DANIEL BLOMBERG Counsel of Record
ADÈLE AUXIER KEIM MISHA TSEYTLIN
JOSEPH DAVIS W. ALEX SMITH
THE BECKET FUND FOR SEAN T.H. DUTTON
RELIGIOUS LIBERTY TROUTMAN PEPPER HAMILTON
1200 New Hampshire Ave. N.W., SANDERS LLP
Ste. 700 875 Third Avenue
Washington, DC 20036 New York, NY 10022
(202) 955-0095 (212) 704-6126
[email protected] [email protected]

Counsel for Applicants

 QUESTIONS PRESENTED

1. Whether an executive order violates the Free Exercise Clause as targeting

and a religious gerrymander when the official who issued it made clear through

unambiguous statements that the order was targeted at a religious minority’s

practices and traditions.

2. Whether an executive order violates the Free Exercise Clause when the

order, on its face, disfavors worship.

ii
 RULE 29 STATEMENT

Pursuant to Supreme Court Rule 29, Applicants Agudath Israel of America,

Agudath Israel of Kew Garden Hills, and Agudath Israel of Madison state that they

have no parent companies or publicly held companies with a 10% or greater

ownership interest in them.

PARTIES TO THE PROCEEDING

Applicants Agudath Israel of America, Inc., Agudath Israel of Kew Garden

Hills, Agudath Israel of Madison, Rabbi Yisroel Reisman, and Steven Saphirstein

were plaintiffs below in proceedings before both the U.S. Court of Appeals for the

Second Circuit and the U.S. District Court for the Eastern District of New York.

Agudath Israel of America, founded in 1922, is a national grassroots Orthodox

Jewish organization. Among its other functions and activities, Agudath Israel

articulates and advances the position of the Orthodox Jewish community on a broad

range of legal issues affecting religious rights and liberties in the United States.

Agudath Israel has a large number of Agudath-Israel affiliated synagogues

throughout the country, with close to 70 in New York State.

Agudath Israel of Kew Garden Hills is an Orthodox Jewish Synagogue located

in New York. Agudath Israel of Kew Garden Hills holds worship services, which are

conducted every day, and serves more than 150 men and women each week. Agudath

Israel of Kew Garden Hills is located in a geographic area affected by Respondent’s

gathering restrictions on houses of worship. Steven Saphirstein serves as the

Secretary of Agudath Israel of Kew Garden Hills.

iii
 Agudath Israel of Madison is an Orthodox Jewish Synagogue located in New

York. Agudath Israel of Madison holds worship services, which are conducted every

day, and serves more than 300 men and women each week. Agudath Israel of Madison

is located in a geographic area affected by Respondent’s gathering restrictions on

houses of worship. Rabbi Yisroel Reisman serves as the Rabbi of Agudath Israel of

Madison.

Respondent Andrew M. Cuomo, in his official capacity as Governor of New

York, was the defendant below in proceedings before both the Court of Appeals for

the Second Circuit and the District Court for the Eastern District of New York.

RELATED PROCEEDINGS

In Agudath Israel of America v. Cuomo, No. 20-3572-CV (2d Cir.), a panel of

the Second Circuit Court of Appeals, over the dissent of Judge Michael H. Park,

entered an order denying Applicants’ motion for injunctive relief pending appeal on

November 9, 2020. App. 1–9. In Agudath Israel of America v. Cuomo, No. 1:20-cv-

04834-KAM (E.D.N.Y.), the District Court for the Eastern District of New York

denied Applicants’ motion for temporary restraining order and preliminary

injunction in an oral ruling on October 9, 2020. App. 10–78.

In The Roman Catholic Diocese of Brooklyn, New York v. Cuomo, No. 20A87

(U.S.), docketed in this Court on November 12, 2020, the Roman Catholic Diocese of

Brooklyn requests a writ of injunction against the same Executive Order at issue in

this case.

iv
 TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................... ii

RULE 29 STATEMENT ............................................................................................... iii

PARTIES TO THE PROCEEDING ............................................................................. iii

RELATED PROCEEDINGS......................................................................................... iv

JURISDICTION............................................................................................................. 4

BACKGROUND AND PROCEDURAL HISTORY....................................................... 4

A. The Synagogues And Their Response To COVID-19 ................................ 4

B. The Governor’s COVID-19 Cluster Initiative And Targeting Of The

Orthodox Jewish Community .................................................................... 5

C. The District Court Proceedings ............................................................... 11

D. The Governor’s Changes To The Cluster Initiative ................................ 12

E. The Second Circuit Proceedings .............................................................. 16

F. The Diocese’s Lawsuit .............................................................................. 18

REASONS FOR GRANTING THE APPLICATION .................................................. 18

I. Applicants Have An Indisputably Clear Right To Relief .............................. 19

A. The Cluster Initiative Is Subject To Strict Scrutiny ............................... 19

1. The Governor’s “Targeting” Of Orthodox Jews Triggers Strict

Scrutiny ……………………………………….……………………………21

2. The Cluster Initiative Also Triggers Strict Scrutiny Because It

Disfavors “Worship” ........................................................................... 25

3. Jacobson Does Not Permit The State To Discriminate Against

Religious Minorities Or Target Religious Practice ........................... 29

B. The Governor’s Cluster Initiative Cannot Withstand Strict Scrutiny ... 31

II. The Circumstances Are Critical And Exigent ............................................... 33

 A. The Ongoing Harm To Applicants Is Real and Immediate .................... 33

B. Applicants’ Worship Activities, Undertaken In Strict Accordance

With CDC Guidelines, Do Not Harm The Public Interests .................... 35

C. The Cluster Initiative Is Out Of Step With Other States ...................... 36

III. In The Alternative, The Court Should Also Grant Certiorari Before
Judgment......................................................................................................... 39

CONCLUSION............................................................................................................. 40

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 TABLE OF AUTHORITIES

Page(s)

Cases
Am. Legion v. Am. Humanist Ass’n,
139 S. Ct. 2067 (2019) ....................................................................................... 28

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................................................................... 31

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ................................................................................. 29, 40

Cent. Rabbinical Cong. of U.S. & Canada v. N.Y. Dep’t of Health & Mental Hygiene,
763 F.3d 183 (2d Cir. 2014) .............................................................................. 35

Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993) ................................................................................... passim

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ........................................................................................... 33

Congregation Rabbinical Coll. of Tartikov v. Vill. of Pomona, NY,

945 F.3d 83 (2d Cir. 2019) ................................................................................ 35

Emp’t Div., Dept’ of Human Res. Of Or. v. Smith,

494 U.S. 872 (1990) ........................................................................................... 27

Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246 (2020) ....................................................................................... 27

Fraternal Order of Police v. City of Newark,

170 F.3d 359 (3d Cir. 1999) .............................................................................. 40

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,

546 U.S. 418 (2006) ........................................................................................... 31

Harvest Rock Church, Inc. v. Newsom,

977 F.3d 728 (9th Cir. 2020) ............................................................................. 30

Holt v. Hobbs,
574 U.S. 352 (2015) ........................................................................................... 31

Homas v. City of Albuquerque,

264 F.3d 1240 (10th Cir. 2001) ......................................................................... 19
- iii -
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171 (2012) ........................................................................................... 27

In re Flint Water Cases,

960 F.3d 820 (6th Cir. 2020) ............................................................................. 19

Jacobson v. Massachusetts,
197 U.S. 11 (1905) ....................................................................................... 12, 30

Korematsu v. United States,

323 U.S. 214 (1944) ............................................................................................. 4

LeBlanc-Sternberg v. Fletcher,
67 F.3d 412 (2d Cir. 1995) ................................................................................ 35

Little Sisters of the Poor Home for the Aged, Denver v. Sebelius,
134 S. Ct. 1022 (2014) ....................................................................................... 19

Mandel v. Bradley,
432 U.S. 173 (1977) ........................................................................................... 30

Masterpiece Cakeshop v. Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) ............................................................................... passim

McCullen v. Coakley,
573 U.S. 464 (2014) ........................................................................................... 32

Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville,

508 U.S. 656 (1993) ........................................................................................... 34

Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Comm’n,

479 U.S. 1312 (1986) ......................................................................................... 18

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

734 F.3d 406 (5th Cir. 2013) ............................................................................. 19

Roberts v. Neace,
958 F.3d 409 (6th Cir. 2020) ............................................................................. 40

S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) ........................................................................... 12, 30, 31

Tenafly Eruv Ass’n v. Borough of Tenafly,

309 F.3d 144 (3d Cir. 2002) .............................................................................. 35

- iv -
The Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo,
No. 20A87 ............................................................................................................ 1

Town of Greece v. Galloway,

572 U.S. 565 (2014) ........................................................................................... 39

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) ....................................................................................... 34

Trump v. Hawaii,
138 S. Ct. 2392 (2018) ......................................................................................... 4

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................................................... 3, 4, 27

Walz v. Tax Comm’n of City of New York,

397 U.S. 664 (1970) ........................................................................................... 29

Williams v. Rhodes,
89 S. Ct. 1 (1968) ............................................................................................... 33

Zucht v. King,
260 U.S. 174 (1922) ........................................................................................... 30

Statutes
28 U.S.C. § 1651 ................................................................................................... 1, 4, 18

28 U.S.C. § 2101 ........................................................................................................... 39

Rules
Fed. R. App. Pro. 8 ................................................................................................. 16, 19

Md. Exec. Order No. 20-09-01-01 (Sept. 1, 2020) ....................................................... 38

N.Y. Exec. Order No. 202 .............................................................................................. 5

N.Y. Exec. Order No. 202.6 ........................................................................................... 5

N.Y. Exec. Order No. 202.8 ........................................................................................... 5

N.Y. Exec. Order No. 202.45 ......................................................................................... 6

N.Y. Exec. Order No. 202.68 ......................................................................................... 1

N.Y. Exec. Order No. 202.72 ....................................................................................... 16

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N.Y. Exec. Order No. 202.74 ......................................................................................... 6

S. Ct. R. 11 ................................................................................................................... 39

S. Ct. R. 22 ..................................................................................................................... 1

Va. Exec. Order No. 67 (6th amend. Nov. 13, 2020) ................................................... 38

Constitutional Provisions
N.H. Const., art. I, § 5 (1784) ...................................................................................... 26

N.Y. Const., art. XXXVIII (1777) ................................................................................ 26

Pa. Const., art. I, § 2 (1776) ......................................................................................... 26

Other Authorities
Are Churches and Other Houses of Worship Offering Services? What Are the Social
Distancing Requirements?, NJ.gov (Oct. 28, 2020) ......................................... 45

C. Radcliffe, The Law & Its Compass (1960) .............................................................. 32

COVID-19 Guidance for Businesses (Oct. 6, 2020) .................................................... 44

COVID-19 Micro-Cluster Strategy, New York State ................................................. 18

George Washington, Letter to Newport Hebrew Congregation (Aug. 18, 1790) ....... 46

Governor Andrew M. Cuomo, Governor Cuomo Announces Updated COVID-19

Micro-Cluster Focus Zones, New York State (Nov. 6, 2020) ........................... 16

Governor Andrew M. Cuomo, Governor Cuomo Announces Updated COVID-19

Micro-Cluster Focus Zones, New York State (Nov. 9, 2020) ........................... 17

Governor Andrew M. Cuomo, Governor Cuomo Is a Guest on CNN Newsroom with

Poppy Harlow and Jim Sciutto, New York State (Oct. 9, 2020)...................... 11

Governor Andrew M. Cuomo, Governor Cuomo Updates New Yorkers on State’s

Progress During COVID-19 Pandemic, New York State (Nov. 14, 2020). 18, 29

Governor Andrew M. Cuomo, Governor Cuomo Updates New Yorkers on State’s

Progress During COVID-19 Pandemic, New York State (Nov. 7, 2020)......... 17

Governor Andrew M. Cuomo, Governor Cuomo Updates New Yorkers on State’s

Progress During COVID-19 Pandemic, New York State (Oct. 12, 2020) ....... 12

Governor Cuomo’s Conference Call with Reporters, Radio.com (Oct. 14, 2020) ......... 8
- vi -
Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U.
Chi. L. Rev. 1109 (1990).................................................................................... 29

Michael W. McConnell, The Origins and Historical Understanding of Free Exercise

of Religion, 103 Harv. L. Rev. 1409 (1990) ...................................................... 30

Nevada Places of Worship and Life-Rites Ceremonies (Sept. 29, 2020) ................... 44

Phase Two Guidance Coronavirus 2019 (COVID-19) Guidance for Places of Worship,
Coronavirus.DC.gov (Oct. 10, 2020) ................................................................. 45

Quick Answers Places of Worship and Cultural Ceremonies, COVID-19.CA.GOV . 44

Samuel Johnson, A Dictionary of the English Language (Phila. ed. 1805) .............. 30

Sector Rules and Certification for Reopen, CT.gov .................................................... 45

Understand Your County’s Status, COVID-19.CA.GOV ........................................... 44

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 TO THE HONORABLE STEPHEN BREYER,
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND
ACTING CIRCUIT JUSTICE FOR THE SECOND CIRCUIT:

Pursuant to Rule 22 of the Rules of this Court, and 28 U.S.C. § 1651(a),

Applicants respectfully request a writ of injunction barring enforcement of New York

Executive Order No. 202.68 (the “Cluster Initiative”), which Respondent Governor

Andrew M. Cuomo issued on October 6, 2020, to restrict attendance at houses of

worship. The recently pending emergency application for writ of injunction in The

Roman Catholic Diocese of Brooklyn, New York v. Cuomo, No. 20A87 (the “Diocese

App.”), raises the same issues that are contained in this application’s second Question

Presented, and as explained below Applicants here are entitled to relief under that

theory. To avoid undue duplication, this application focuses primarily on the first

Question Presented: the discriminatory targeting of the Orthodox Jewish community

in crafting and implementing the Cluster Initiative. Granting this relief will leave

New York’s already-stringent capacity restrictions in place and enforceable, blocking

the Cluster Initiative’s 10- and 25-person capacity limitations.

For six weeks and counting, Applicants have been laboring under

discriminatory restrictions on their religious exercise. Their neighborhoods and

religious institutions have been—in the words of the Governor himself—“targeted.”

The Governor publicly asserted that other Orthodox Jews had violated his prior rules,

and therefore the Governor imposed severe restrictions on worship across several

Orthodox Jewish neighborhoods. Applicants themselves are not alleged to have

violated any public health or safety rules. To the contrary, they have carefully and

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successfully complied with mask requirements, social distancing, and capacity

constraints. Yet the Governor’s guilt-by-religious-association restrictions have made

it impossible for Applicants and their members to exercise their religious faith. The

restrictions have eliminated the ability of many Jews to worship on important

religious holy days. None of this is necessary to protect public health. The Governor

has admitted that the restrictions are not based on science, but rather on “fear” and

“emotion” about areas that would be “safe zones” in other states.

The Governor’s statements and actions are more discriminatory than those in

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), and

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).

In a series of press conferences, the Governor explained that he was enacting new

restrictions on places of worship, in certain neighborhoods that contain many

Orthodox Jews, because he believed that this religious minority is to blame for a

recent increase in COVID-19 infection rates. The Governor left no doubt that

targeting Orthodox Jews was his primary motivation. He described the problem he

sought to address as “predominantly an ultra-orthodox cluster,”1 adding that he

planned to “meet with members of the ultra-Orthodox community tomorrow,” to let

them know that “we’ll close the [religious] institutions down” if “you do not agree to

enforce the rules.”2 The Governor also highlighted pictures of Orthodox Jews as

1 App. 80. See also https://nypost.com/2020/10/09/gov-cuomo-ny-covid-19-spike-an-ultra-orthodox-

jewish-problem/. All websites lasted visited on November 15, 2020.
2 App. 102.

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allegedly demonstrating “clear violations of social distancing,” wrongly claiming that

the pictures were from “the recent past” (one of those photos was of a 2006 funeral).3

And the Cluster Initiative that the Governor issued matched his discriminatory

rhetoric, as it was plainly gerrymandered to target the Orthodox Jewish community.

The Governor’s targeting of this religious minority is widely understood. A

federal judge explained that the Governor “made remarkably clear that this [Cluster

Initiative] was intended to target a different set of religious institutions,” i.e.,

Orthodox Jews.4 National publications have noted that, in issuing his Cluster

Initiative, the Governor made “sweeping accusation[s]” and used harmful “rhetoric”

against the Orthodox community.5 Legal commentators have noted that the

Governor’s discriminatory comments harken back to the “hostility” that Jews have

faced for hundreds of years.6

The Governor’s targeting of a religious minority for blame during a pandemic,

falsely tarring them as perpetrators rather than victims of the virus, is incompatible

with the Free Exercise Clause. Almost eighty years ago, this Court rejected an attack

on another religious minority that had been scapegoated as a threat. See W. Va. State

Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Few things could be more corrosive to

society than allowing collective guilt to be applied to a disfavored religious group

3 App. 100.
4 App. 112–13. See also The Roman Catholic Diocese of Brooklyn v. Cuomo, No. 1:20-cv-04844
(E.D.N.Y. Oct. 9, 2020), Dkt.15:3.
5 App. 113. See also https://www.wsj.com/articles/a-jewish-revolt-against-lockdowns-11602198987.
6 Id. See also https://reason.com/2020/10/08/understanding-governor-cuomos-hostility-towards-
jews/.

-3-
because of the perceived actions of some of their coreligionists. As it was 77 years ago,

it is sadly again “necessary to say that the First Amendment to our Constitution was

designed to avoid these ends by avoiding these beginnings.” Id. at 641; accord Trump

v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (overruling Korematsu v. United States, 323

U.S. 214 (1944)). Or, as an amicus brief submitted below by the Muslim Public Affairs

Council, et al., explains, the Governor’s statements and actions are yet another

example of the regrettable historical experience that “[t]oo often, religious minorities

have served as scapegoats in times of sickness, war, and fear.”7 Our pluralistic Nation

depends on the Constitution and the courts to function in good times and in bad. This

Court should not countenance the use of an emergency to target a religious minority.

JURISDICTION

Applicants’ appeal from the district court’s denial of a preliminary injunction

is pending in the Second Circuit. This Court has jurisdiction under 28 U.S.C. § 1651.

BACKGROUND AND PROCEDURAL HISTORY

A. The Synagogues And Their Response To COVID-19

Applicants’ synagogues are a necessary and essential component of religious

practice for thousands of Orthodox Jews in New York. Orthodox Jews pray in

Applicants’ synagogues every day, and the services that the synagogues conduct on

Saturdays and Jewish holidays form a vital part of Orthodox religious worship. App.

167, 172, 177. Because Orthodox Jews are prohibited from vehicular travel on

7 App. 152.

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Saturdays and holidays, synagogues are tightly clustered around where practitioners

reside. App. 170, 175, 180, 183.

When the COVID-19 pandemic struck the State earlier this year, Applicants’

synagogues adopted rigorous health protocols and altered religious congregation to

safeguard against the spread of the virus. Applicants split the traditional

congregational service into several separate gatherings, which accommodates every

congregant while still ensuring that congregants maintain proper social distancing.

App. 168, 172–73, 178. Applicants require congregants to wear masks during the

entirety of their religious services, and congregants have fully complied with the

mask policy. Id. By implementing health and safety protocols, Applicants have been

able to allow their members to continue to practice their religious beliefs while still

safeguarding against the spread of COVID-19. Indeed, the Governor has never

disputed that Applicants have rigorously implemented and adhered to all health

protocols and that there has been no outbreak in their congregations. App. 167, 172–

73, 177–78.

B. The Governor’s COVID-19 Cluster Initiative And Targeting Of The

Orthodox Jewish Community

In response to COVID-19, the Governor closed businesses and restricted

gatherings, and then permitted them to take part in a phased reopening. On March

7, the Governor issued Executive Order No. 202 declaring a State emergency. App.

185–87. The Governor issued Executive Order Nos. 202.6 and 202.8 that required all

non-essential businesses or entities to close. Pursuant to these orders, the Empire

State Development Corporation designated an array of “essential businesses” exempt

-5-
from closure, including, for example, the financial services and the manufacturing

industries, pet stores, liquor shops, and farmer’s markets. App. 115–16;8 see also App.

191–93 (“essential” businesses for the Cluster Initiative).

By now, all of the State is in Phase Four (the final phase) of reopening. See

generally App. 202–52. In this Phase, most non-essential businesses can open under

capacity and social distancing guidelines. App. 239–46. For many businesses

considered “non-essential” but permitted to reopen in Phase Four, such as offices,

retail stores, and malls, State guidelines limit capacity to 50% of maximum

occupancy. See App. 256, 267, 280. For religious services, State rules impose a 33%

indoor capacity restriction. App. 294, 296. Phase Four also allows “non-essential

gatherings” of up to 50 people for “any lawful purpose or reason.” N.Y. Exec. Order

No. 202.45.9

The week of October 5, the Governor instituted new restrictions designed to

target the Orthodox Jewish community; those new rules are the heart of this case.

During an October 5 press conference, the Governor stated that he planned to “meet

with members of the ultra-Orthodox community tomorrow,” threatening that “we’ll

close the [religious] institutions down” if “you do not agree to enforce the rules.” App.

102. He falsely claimed that the “ultra-Orthodox community” was causing the

“problem,” id., and described the COVID-19 cluster as “predominantly an ultra-

8 See also https://esd.ny.gov/guidance-executive-order-2026.

9 On November 12, the Governor modified this restriction to limit “non-essential private residential
gatherings to 10 or fewer individuals for any lawful purpose or reason.” N.Y. Exec. Order No. 202.74.

-6-
orthodox cluster,” App. 80. He continued to single out Orthodox Jews for over a week,

stating that “[w]e’re now having issues in the Orthodox Jewish community in New

York, where because of their religious practices, etc., we’re seeing a spread,” App.

310,10 and emphasizing that such restrictions are necessary because of “ultra-

Orthodox communities, who are also very politically powerful,” Governor Cuomo’s

Conference Call with Reporters, Radio.com (Oct. 14, 2020).11

The Governor warned his new restrictions would not be “a highly nuanced,

sophisticated response. This is a fear driven response. You know, this is not a policy

being written by a scalpel, this is a policy being cut by a hatchet[.]” App. 117.12 The

Governor acknowledged that “the fear [was] too high” in the City to take “a smarter,

more tailored approach” because “we have a real problem with fear and anxiety” and

people “moving out.” App. 389.13

On October 6, the Governor issued the Cluster Initiative, which implemented

gathering restrictions targeting the Orthodox Jewish community. App. 322–24. The

Cluster Initiative does not provide any generally applicable metrics for triggering an

area’s inclusion in the restrictions, such as a minimum COVID-19 test positivity rate

or positive tests per capita. See id. Rather, the Cluster Initiative states simply that

10 See also https://www.nationalreview.com/news/cuomo-says-religious-practices-of-orthodox-jews-

causing-virus-to-spread-in-new-york-city/.
11 Available at https://www.radio.com/1010wins/podcasts/winsam-on-demand-44196/governor-
cuomos-conference-call-with-reporters-347936831/ (recording at 11:55-12:05).
12 See also https://hamodia.com/2020/10/12/exclusive-recording-jewish-leaders-say-stabbed-back-
cuomo/ (recording at 18:58–22:30).
13 Id.

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“[t]he Department of Health shall determine areas in the State that require enhanced

public health restrictions based upon cluster-based cases of COVID-19 at a level that

compromises the State’s containment of the virus.” App. 323. The Governor likewise

did not provide any set metrics in announcing his new restrictions. App. 325–35.

The Cluster Initiative subjects violators to “a civil penalty not to exceed

$15,000 per day.” App. 323. It creates three types of zones—a “Red Zone,” “Orange

Zone,” or “Yellow Zone”—and imposes different restrictions on each.

In a “Red Zone,” the Cluster Initiative restricts houses of worship “to a capacity

limit of 25% of maximum occupancy or 10 people, whichever is fewer.” App. 324. The

Cluster Initiative bans all “[n]on-essential” gatherings, whether indoors or outdoors,

and requires “all non-essential businesses, as determined by the Empire State

Development Corporation based upon published guidance, shall reduce in-person

workforce by 100%.” Id. The Cluster Initiative also closes schools and restaurants. Id.

Any “[ ]essential” gatherings—a term not defined in the Cluster Initiative14—as well

as “essential” businesses, are not subject to the capacity limitations imposed on

houses of worship. See id.

In an “Orange Zone,” the Cluster Initiative restricts houses of worship to “a

maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people,

whichever is fewer.” Id. The Cluster Initiative bans “[n]on-essential” gatherings of

more than 10 people, whether indoors or outdoors, and requires only “certain non-

14 Even the district court found that “the State seems to concede [‘non-essential gatherings’] is not
clearly defined in the Executive Order or on the New York Governor’s website.” App. 52.

-8-
essential businesses, for which there is a higher risk associated with the transmission

of the COVID-19 virus,” to close. Id. The Cluster Initiative allows restaurants to open

for outdoor service, and it closes schools. Id. The Governor exempts most businesses,

such as offices, malls, and retail stores, (as well as “essential” gatherings) from these

restrictions imposed on houses of worship, allowing such businesses to operate at 50%

capacity. App. 253–91.

In a “Yellow Zone,” the Cluster Initiative restricts houses of worship to “a

capacity limit of 50% of its maximum occupancy” and requires them to “adhere to

Department of Health guidance.” App. 324. The Cluster Initiative bans all “[n]on-

essential” gatherings of more than 25 people, whether indoor or outdoor. Id. Yet the

Cluster Initiative exempts most businesses—and, again, “essential” gatherings—

from these restrictions, including restaurants for both indoor and outdoor dining

services (limiting “any one seated group or party size to 4 people”). Id. The Cluster

Initiative likewise allows schools to open in Yellow Zones at full capacity, with certain

testing protocols in place. Id.; see also App. 336–73.

In issuing his Cluster Initiative, the Governor announced the restrictions

would apply only to areas in Brooklyn and Queens, Broome County, Orange County,

and Rockland County. App. 196–201, 327. The restricted zones wind through these

areas, at times stopping midblock to encircle members of the Orthodox Jewish

community. Id. Indeed, when the restricted areas in Brooklyn are overlaid on a map

of Orthodox synagogues, yeshivas, and businesses in the area, the Governor’s

targeting of Orthodox Jewish communities is readily apparent:

-9-
See App. 385.

On October 9, the Governor acknowledged that “we have a couple of unique

clusters, frankly, which are more religious organizations, and that’s what we’re

targeting.” Governor Andrew M. Cuomo, Governor Cuomo Is a Guest on CNN

Newsroom with Poppy Harlow and Jim Sciutto, New York State (Oct. 9, 2020) (“[T]he

issue is with that ultra-orthodox community.”).15

On October 12, the Governor admitted that the micro-clusters’ positivity rates

would be “nothing” “[t]o other states” and indeed would be a “safe zone” or “cool spot”

15 Available at https://www.governor.ny.gov/news/audio-rush-transcript-governor-cuomo-guest-cnn-
newsroom-poppy-harlow-and-jim-sciutto/.

- 10 -
nationwide. Governor Andrew M. Cuomo, Governor Cuomo Updates New Yorkers on

State’s Progress During COVID-19 Pandemic, New York State (Oct. 12, 2020).16 The

Governor further explained that he was applying an “absurdly low” and “unrealistic”

standard. Id.

C. The District Court Proceedings

On October 8, 2020, Applicants filed a complaint in the Eastern District of New

York challenging the Cluster Initiative as violating Applicants’ free-exercise rights,

App. 395–419, and Applicants filed a Motion for a Temporary Restraining Order and

a Preliminary Injunction the same day, App. 420–24.

Applicants showed that the Cluster Initiative renders it “impossible” for

Applicants’ synagogues and their congregants to fulfill their religious obligations.

App. 168, 173, 178. Under the restrictions, it is impossible to conduct services for all

of Applicants’ congregants. Id.

Applicants also demonstrated that the Governor’s restrictions

disproportionately impact Orthodox Jewish services. While Orthodox Jews can

engage in other activity outside of prohibited zones, the Cluster Initiative bars

Orthodox Jews principally from attending religious services, as their beliefs prohibit

them from vehicular travel to synagogues outside of their restricted zones (unlike

practitioners of many other faiths). App. 170, 175, 180, 183. Additionally, there are

hundreds of synagogues and tens of thousands of Orthodox Jews in the restricted

16 Available at https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-states-
progress-during-covid-19-pandemic-46/.

- 11 -
areas. App. 182–183. Thus, the Cluster Initiative imposes the brunt of its religious

burden on Orthodox Jewish worshippers, who it totally deprives of the ability to

participate in religious services. App. 170–71, 175, 180. The Governor also scheduled

his religious shutdown to begin on the eve of a Jewish holiday weekend. App. 170,

175, 180. While these holidays have passed, the discrimination persists, as Orthodox

Jews celebrate the Sabbath every weekend. Id.

On October 9, the district court held a hearing and denied Applicants’ motion.

App. 50–75. The court reviewed the Cluster Initiative under “the deferential standard

announced by the Supreme Court in Jacobson v. Massachusetts [197 U.S. 11 (1905)],”

and held that Applicants did not have a likelihood of success on their claims. App. 56

(also citing, among other authorities, S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020)). The court concluded that the “balance of equities and the

public interest weigh strongly in favor of [the Governor].” App. 74. Applicants, the

court explained, would not suffer irreparable harm—despite loss of their right to

worship in synagogue—because they have “previously complied with the [State’s]

total lockdown and ha[ve] continued to comply with the Phase Four restriction” and

“can continue to observe their religion” with “modifications.” App. 75.

D. The Governor’s Changes To The Cluster Initiative

In the weeks following his issuance of the Cluster Initiative, the Governor has

released various iterations of metrics that he purportedly uses to designate and re-

designate zones for restrictions.

- 12 -
 The day after Applicants filed this lawsuit, the Governor cited the following

data as purportedly supporting the basis for his original restricted zones: “For

example, while most of New York City has a rate of positive tests around 1%, the red

zone area had a positivity rate of approximately 8% which is alarming.” App. 442.

But the Governor provided no objective, generally applicable metrics that he applied

to areas in designating the zones. Id.

On October 16, after several additional lawsuits were filed against the

initiative, the Governor unveiled new metrics to “inform decisions on what steps the

State needs to take to address areas of concern with higher positivity rates” in

designating or re-designating zones, which provided that “[a]n area may be placed in

a ‘Red Zone’” if it has a 3% or higher positivity rate “for a sustained period of time,”

among other factors. App. 119.17 These new metrics stated that “[t]here is no specific

percentage or threshold to determine when an area should be designated as an

Orange or Yellow Zone,” providing that the Governor can consider multiple,

unspecified factors. App. 119–20.18

On October 21, the Governor released still new criteria, tied to positivity rates

and other discretionary factors. App. 313 & n.5.19 The guidelines subject areas in the

State to different rules of 7-day rolling average positivity rates and daily positive

17 App. 452
18 See also App. 454.
19 See also https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/MicroCluster_
Metrics_10.21.20_FINAL.pdf/.

- 13 -
cases per capita. Id.20 Yet even the Governor concedes that the guidelines “afford the

Governor and DOH some discretion,” App. 487, in deciding which areas to restrict

based on myriad factors, including, for example, “demographic information” and

“community cooperation,” App. 313 & n.5.21

In the weeks after the issuance of his Cluster Initiative, the Governor

continued to impose Red Zone restrictions on predominately Orthodox Jewish areas,

while relieving other areas with higher positivity rates. For example, the Governor

maintained heavily restrictive Red Zone status for Jewish communities in Brooklyn

that had a 7-day rolling average positivity rate of 4.57% on October 23. App. 313–

14.22 Yet the Governor did not impose similar restrictions on areas with higher

positivity rates but without a meaningful Orthodox Jewish population. Thus, there

was a “Broome yellow-zone” with 6.30% positivity, a “Steuben yellow-zone” with

4.65%, and a “Chemung orange-zone” with 8.13%. Id. On October 27, the Governor

continued to impose “Red Zone” restrictions on Brooklyn Orthodox Jewish

communities with 4.23% positivity, while areas without a Jewish population have

higher positivity but fewer restrictions: “Broome yellow-zone” at 8.04%, “Steuben

yellow-zone” at 4.44%, and “Chemung orange-zone” at 7.80%. App. 314.23

20 See also id. at 5–7.

21 See also id. at 3, 5–6, 8–9.
22 See also https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-states-
progress-during-covid-19-pandemic-50/.
23 See also https://www.governor.ny.gov/news/governor-cuomo-announces-travel-advisory-requiring-
14-day-quarantine-0.

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 And while the Governor has lifted the Red Zone in Brooklyn, he continued to

impose more stringent Orange Zone restrictions on predominately Orthodox Jewish

communities than other areas with higher positivity rates. On November 6 and 7,

while he re-designated some of the Brooklyn Red Zone to Yellow Zone status,

Governor Andrew M. Cuomo, Governor Cuomo Announces Updated COVID-19 Micro-

Cluster Focus Zones, New York State (Nov. 6, 2020),24 he disclosed the following

positivity rates: Brooklyn Red Zone at 3.26%, Broome Yellow Zone at 4.03%, Steuben

Yellow Zone at 4.11%, and Chemung Orange Zone at 6.92%. Governor Andrew M.

Cuomo, Governor Cuomo Updates New Yorkers on State’s Progress During COVID-

19 Pandemic, New York State (Nov. 7, 2020).25 The Governor finally re-designated

all Brooklyn to Orange or Yellow Zone status on November 9. Governor Andrew M.

Cuomo, Governor Cuomo Announces Updated COVID-19 Micro-Cluster Focus Zones,

New York State (Nov. 9, 2020).26 Yet the Governor still imposed harsh Orange Zone

restrictions on Brooklyn Orthodox Jews areas with 7-day positivity rates of 4.22% on

November 14, and he afforded less severe Yellow Zone restrictions for areas with

greater rates: Erie at 7.45%, Monroe at 5.57%, Onodaga at 6.58%, Staten Island at

4.26%, and Tioga at 10.32%. Governor Andrew M. Cuomo, Governor Cuomo Updates

24 Available at https://www.governor.ny.gov/news/governor-cuomo-announces-updated-covid-19-
micro-cluster-focus-zones/.
25 Available at https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-states-
progress-during-covid-19-pandemic-61/.
26 Available at https://www.governor.ny.gov/news/governor-cuomo-announces-updated-covid-19-
micro-cluster-focus-zones-0/.

- 15 -
New Yorkers on State’s Progress During COVID-19 Pandemic, New York State (Nov.

14, 2020).27

On November 3, the Governor issued Executive Order No. 202.72, which

“continues the suspensions and modifications of law . . . as continued and contained

in Executive Order[ ] . . . 202.68 for another thirty days through December 3, 2020.”28

E. The Second Circuit Proceedings

On October 21, Applicants filed an Emergency Motion For Injunction Pending

Appeal in the Second Circuit. On November 9, a divided panel denied the motion.

App. 1–9. The panel held that Applicants did not “clear the high bar necessary to

obtain an injunction pending appeal,” concluding that the Cluster Initiative is neutral

towards religious practice because it “subjects religious services to restrictions that

are similar to or, indeed, less severe than those imposed on comparable secular

gatherings.” App. 3 (emphasis in original). The panel did not address the other

elements of injunctive relief on appeal: the irreparable injury to Applicants in the

absence of relief, the balance of the equities, and the public interest. The panel also

denied the motion on the erroneous, alternative grounds that Applicants did not

comply with Federal Rule of Appellate Procedure 8(a) by moving first in the district

court for an injunction pending appeal, after their injunction was denied. App. 2.

27 Available at https://www.governor.ny.gov/news/governor-cuomo-updates-new-yorkers-states-
progress-during-covid-19-pandemic-65/.
28 The Governor originally imposed Red Zone restrictions on Agudath Israel of Madison and Agudath
Israel of Kew Garden Hills. App. 168, 178. The Governor re-designated Agudath Israel of Madison to
be in the Orange Zone on November 9. See COVID-19 Micro-Cluster Strategy, New York State,
available at https://forward.ny.gov/. Agudath Israel of Kew Garden Hills is in the Yellow Zone. Id.

- 16 -
 Judge Park dissented, concluding that the Cluster Initiative is not neutral

towards religious practice and fails strict scrutiny. App. 6. In particular, citing

Masterpiece Cakeshop, Judge Park found that the Governor’s “public statements

confirm that he intended to target the free exercise of religion.” Id. Judge Park also

reasoned that the “disparate treatment of religious and secular institutions”

evidenced by the Cluster Initiative’s “favorable” capacity limitations provided to

“businesses deemed ‘essential’” is “plainly not neutral.” Id. Judge Park rejected the

Governor’s reliance on South Bay and Jacobson, concluding that South Bay is not

precedential and “was decided during the early stages of the pandemic,” and that

Jacobson dealt only with “a substantive due process challenge” and “does not call for

indefinite deference to the political branches exercising extraordinary emergency

powers, nor does it counsel courts to abdicate their responsibility to review claims of

constitutional violations.” App. 7–8. Judge Park concluded that the Cluster

Initiative’s “blunderbuss approach is plainly not the ‘least restrictive means’ of

achieving the State’s public safety goal,” reasoning the Red and Orange Zones’ “fixed

capacity limits do not account in any way for the sizes of houses of worship” and that

the Governor failed to show how “generally applicable public-health restrictions” for

favored secular conduct would not similarly prevent “COVID-19 transmission” for

religious gatherings. App. 8 (quoting Lukumi, 508 U.S. at 578). Judge Park also found

that the equities favored relief, recognizing that Applicants “presented unrebutted

evidence that the [Cluster Initiative] will prevent their congregants from freely

exercising their religion” and that the State “may not” implement “greater

- 17 -
restrictions only on houses of worship.” App. 8–9. Finally, Judge Park held that in

light of the district court’s “error” that Applicants would not suffer irreparable harm,

“[P]laintiffs reasonably believed that another motion for injunction in the district

court would be futile” under Rule 8(a). App. 8 n.5.

F. The Diocese’s Lawsuit

Pending in this Court is an emergency application to Justice Breyer for writ of

injunction submitted by the Diocese of Brooklyn. See Diocese App. The Diocese’s

lawsuit has proceeded in tandem with this case. Both sets of plaintiffs filed their

complaints on October 8, and both district courts heard and denied the plaintiffs’ TRO

motions on October 9. On October 21 both sets of plaintiffs filed in the Second Circuit

requests for injunctive relief pending appeal, and the court held argument in tandem

on November 3. The Second Circuit denied both motions in a single order and

expedited both appeals in tandem. App. 4.

REASONS FOR GRANTING THE APPLICATION

In cases of “exigent circumstances,” the All Writs Act, 28 U.S.C. § 1651(a),

authorizes either an individual Justice or the Court to issue an injunction when the

“legal rights at issue are indisputably clear” and relief is “necessary or appropriate in

aid of the Court’s jurisdiction.” Ohio Citizens for Responsible Energy, Inc. v. Nuclear

Regulatory Comm’n, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers). In such

cases, this Court exercises broad discretion: it may issue an injunction pending

appellate review “based on all the circumstances of the case . . . [without] express[ing]

- 18 -
. . . the Court’s views on the merits.” Little Sisters of the Poor Home for the Aged,

Denver v. Sebelius, 134 S. Ct. 1022, 1022 (2014).29

I. Applicants Have An Indisputably Clear Right To Relief

A. The Cluster Initiative Is Subject To Strict Scrutiny

The First Amendment forbids States from enacting laws that target religious

groups or unduly burden the free exercise of religion, Lukumi, 406 U.S. at 531, and a

law can be subject to strict scrutiny in several independent ways. An edict that is not

neutral toward religion in any one of these ways can survive only if it clears strict

scrutiny, which occurs “only in rare cases.” Id. at 546. Two of those independent ways

are relevant to this Application.

First, a government edict that restricts religious practice because of the

decision-maker’s targeting of a particular religious sect is not neutral, regardless of

its facial text. Masterpiece Cakeshop, 138 S. Ct. at 1724, 1729–32; Lukumi, 508 U.S.

at 533–38. In determining whether a discriminatory object exists, a court should

analyze “‘the historical background of the decision under challenge, the specific series

of events leading to the enactment or official policy in question, and the legislative or

29 Rule 8(a) poses no barrier to this Court granting relief to Applicants. Consistent with Judge Park’s
conclusion below, App. 8, Applicants explained that this case plainly satisfies Rule 8(a)’s
“impracticable” exception, as it would be futile to ask the district court for the same relief the court
had just denied to them in rejecting their injunction motion, especially when the court erroneously
concluded that the Cluster Initiative’s harsh capacity limitations do not impose irreparable harm on
Applicants, App. 318–19 (citing In re Flint Water Cases, 960 F.3d 820, 825 (6th Cir. 2020), Planned
Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410–11 (5th Cir. 2013),
and Homas v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001)). In any event, out of an
abundance of caution, Appellants filed such a request in the district court on November 13. App. 495–
96.

- 19 -
administrative history, including contemporaneous statements made by members of

the decisionmaking body.’” Masterpiece Cakeshop, 138 S. Ct. at 1731 (quoting

Lukumi, 508 U.S. at 540).

This Court’s decisions in Lukumi and Masterpiece Cakeshop are instructive.

In Lukumi, members of the Santeria religion sought to open a house of worship,

school, cultural center, and museum in the City of Hialeah. 508 U.S. at 525–26. Some

in the community found this prospect “distressing” because the church engaged in

ritual animal sacrifice, and the city council passed a resolution “declar[ing] the city

policy ‘to oppose the ritual sacrifices of animals’ within [city limits] and announc[ing]

that any person or organization practicing animal sacrifice ‘will be prosecuted.’” Id.

at 526–27. The city council also adopted ordinances outlawing animal sacrifice. Id. at

527–28. This Court held that the government action violated the Free Exercise

Clause, even though the ordinances were facially neutral, because “suppression of the

central element of the Santeria worship service was the object of the ordinances.” Id.

at 535. In Masterpiece Cakeshop, a Christian baker declined to create a cake for a

same-sex wedding because it violated his “deeply held [religious] beliefs.” 138 S. Ct.

at 1724. During hearings before the Colorado Civil Rights Commission, some

commissioners maligned the baker’s religious beliefs, with one commissioner

criticizing religion as having been used to both “justify all kinds of discrimination

throughout history” and “hurt others.” Id. at 1729. This Court concluded that the

“[t]he official expressions of hostility to religion in some of the commissioners’

- 20 -
comments” were “inconsistent with the First Amendment’s guarantee that our laws

be applied in a manner that is neutral toward religion.” Id. at 1731–32.

Second, a law also is not neutral if it “target[s]” religious practice when the

law’s “operation is considered,” as “[a]part from the text, the effect of a law in its real

operation is strong evidence of its object.” Lukumi, 508 U.S. at 535. Thus, in Lukumi,

this Court concluded that the challenged “ordinances’ operation” also evidenced

“target[ing]” of religious practice because the law was underinclusive in the conduct

that it proscribed. Id. The Court found that the ordinances permitted animal killing

in most nonreligious contexts and also explicitly exempted certain secular activity

from the restrictions. Id. at 536–37. The Court reasoned that if the city’s secular basis

for restricting animal sacrifice—protecting public health and preventing cruelty to

animals—were accepted, the city also should have barred similar nonreligious animal

killings. Id. at 536–38. Because the city did not, the “pattern of exemptions” in the

ordinances evidenced the law’s singling out religious practice. Id. at 537.

Here, the Governor illegally targeted both a specific religious minority and

religion more broadly.

1. The Governor’s “Targeting” Of Orthodox Jews Triggers Strict

Scrutiny

The Governor’s repeated statements singling out the Orthodox Jewish

community—matched by his clear gerrymandering to encircle primarily Orthodox

communities and synagogues—are sufficient to render this Order unconstitutional

under Masterpiece Cakeshop.

- 21 -
 a. The Governor made overwhelmingly clear that his Cluster Initiative was

designed to target a particular religious minority that he falsely blames for the spread

of COVID-19—Orthodox Jews. He threatened “members of the ultra-Orthodox

community” that “[i]f you do not agree to enforce the rules, then we’ll close the

[religious] institutions down.” App. 101–02. He described the COVID-19 “cluster [as]

predominantly an ultra-orthodox cluster” and identified “the ultra-Orthodox

community” as causing the “problem,” putting any doubt regarding his religious

targeting to rest. App. 80.

The “contemporaneous statements” that the Governor made when restricting

houses of worship, as well as the Cluster Initiative’s context, plainly show his

“discriminatory object” of targeting Orthodox practices. Lukumi, 508 U.S. at 533, 540.

The Governor’s Cluster Initiative required enforcement of his restrictions by October

9—the beginning of the Jewish holidays, App. 168, 173, 178, ensuring that it was

“impossible” for Applicants and other Orthodox Jews to conduct and participate in

such services, App. 168, 173, 178. The brunt of the Governor’s restrictions falls

disparately on Orthodox Jews, who cannot use vehicular travel on the Sabbath or on

religious holidays and thus are unable even to travel to houses of worship for religious

practice in permitted areas. App. 170, 175, 180. If anything, the Governor’s

contemporaneous comments here are worse than those in Lukumi and Masterpiece

Cakeshop. The Governor did not attack religious belief generally, but singled out a

particular religion for blame and retribution for an uptick in a society-wide pandemic.

- 22 -
App. 80, 101–02. He threatened “members of the ultra-Orthodox community” and

referred to them as a “problem,” due to his own perceptions of the community. Id.30

b. The context of the Governor’s actions likewise separately demonstrates that

his Cluster Initiative specifically targeted the Orthodox Jewish community. The

Cluster Initiative as initially issued did not include any criteria—generally applicable

or otherwise—for designating areas for restrictions, App. 322–24, and the Governor

did not disclose any set criteria when he designated Applicants’ communities as

restricted zones on October 6, App. 325–35. The Governor’s Cluster Initiative does

not require that when other neighborhoods reach the same or even greater COVID-

19 concentration levels they will be subject to the same restrictions imposed on

Applicants, or that if the restricted zones meet certain criteria they will be released

from lockdown. Rather, the Governor simply announced gerrymandered areas that

contain predominately Orthodox Jewish communities for stringent gathering

limitations without providing any generally applicable basis for the restrictions. App.

196–201; see also App. 385; supra p. 10. The Governor has eschewed traditional

geographic boundaries, and has afforded himself carte blanche authority to inflate or

diminish rates as he desires, including by moving the boundaries of the “zones” at

will. The Free Exercise Clause does not allow the Governor to use religion as a basis

30 In issuing his Order, the Governor was acting as the sole adjudicator—implementing capacity
restrictions and enforcing them. His repeated discriminatory comments thus are even more egregious
than those at issue in Masterpiece Cakeshop, which involved the comments of one or two of the seven
commissioners, and this Court relied upon the silence of the other commissioners in failing to object
to those discriminatory statements. 138 S. Ct. at 1726–27, 1729.

- 23 -
for such restrictions by gerrymandering disparate Orthodox Jewish communities into

a single restricted zone. See App. 385.

The Governor has relied on post hoc zone criteria released in the weeks after

issuing his Cluster Initiative as evidence of the nondiscriminatory nature of the

original zones being challenged, but these metrics purport to explain only how a new

“cluster” can achieve a zone designation. See App. 112–14, 119,31 313.32 These metrics

do not attempt to explain how the original zones targeting Orthodox Jewish

communities were designated, and they cannot cure the Governor’s own, “frank[]”

admission that the original clusters were “religious organizations.” See supra pp. 5–

11.

Moreover, the Governor’s post-filing actions only further underscore that he

continues to target Orthodox Jewish communities as his “discriminatory object.”

Lukumi, 508 U.S. at 533, 540. For example, the Governor maintained the heavily

restrictive Red Zone status for Jewish communities in Brooklyn, which restricts

synagogue attendance to no more than 10 people, even when other neighborhoods

with far higher positivity rates were subject to far fewer restrictions. On October 23,

for example, Red Zones in Brooklyn had a 7-day rolling average positivity rate of

4.57%, but the Governor did not similarly impose Red Zone restrictions on areas with

higher rates but without a meaningful Orthodox Jewish population. App. 313–14.

31 See also Declaration of Howard A. Zucker, The Roman Catholic Diocese of Brooklyn, New York v.
Cuomo, No. 1:20-cv-04844 (E.D.N.Y.), Dkt. 29-1 at ¶¶ 12–13, 20.
32 See also https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/MicroCluster_
Metrics_10.21.20_FINAL.pdf/.

- 24 -
Thus, there was a “Broome yellow-zone” with 6.30% positivity on October 23, a

“Steuben yellow-zone” with 4.65%, and a “Chemung orange-zone” with 8.13%, all

communities without the substantial Orthodox Jewish populations in the Governor’s

disfavored Red Zone regions. Id.

This inconsistent treatment of communities has not abated. On October 27, the

Governor continued to impose Red Zone restrictions on Brooklyn Orthodox Jewish

communities with 4.23% positivity, while areas without a Jewish population had

higher positivity but fewer restrictions: “Broome yellow-zone” at 8.04%, “Steuben

yellow-zone” at 4.44%, and “Chemung orange-zone” at 7.80%. App. 314.

And while the Governor has since changed the Brooklyn Red Zone into an

Orange Zone, he continues to implement those restrictions unequally. He imposed

Orange Zone restrictions on Brooklyn Orthodox Jewish neighborhoods with 7-day

positivity rates of 4.22% on November 14, while affording less stringent Yellow Zone

restrictions to areas with higher positivity rates: Erie at 7.45%, Monroe at 5.57%,

Onondaga at 6.58%, Staten Island at 4.26%, and Tioga at 10.32%. Governor Andrew

M. Cuomo, Governor Cuomo Updates New Yorkers on State’s Progress During

COVID-19 Pandemic, New York State (Nov. 14, 2020). The Governor has not set forth

any neutral justification for such disparate treatment.

2. The Cluster Initiative Also Triggers Strict Scrutiny Because It

Disfavors “Worship”

Even ignoring the Governor’s impermissibly discriminatory targeting of the

Orthodox Jewish community—and as already explained to this Court by the Roman

Catholic Diocese of Brooklyn, New York, see Diocese App. 21–29—his restrictions are

- 25 -
also facially discriminatory against religious practice more broadly by expressly

imposing gathering restrictions on “houses of worship” that the Governor does not

force on secular conduct. App. 324.

The Cluster Initiative’s regulation of worship separately requires heightened

scrutiny under the text, history, and tradition of the Religion Clauses. Worship is at

the core of the “exercise of religion” protected by the Free Exercise Clause. Dr.

Johnson defined “exercise” to mean inter alia an “Act of divine worship whether

publick or private.” Michael W. McConnell, Free Exercise Revisionism and the Smith

Decision, 57 U. Chi. L. Rev. 1109, 1153 n.23 (1990) (quoting Samuel Johnson, A

Dictionary of the English Language (Phila. ed. 1805)). The provisions of Founding-

era state constitutions that served as a model for the Bill of Rights specifically

protected worship. See, e.g., N.Y. Const., art. XXXVIII (1777) (“[T]he free exercise and

enjoyment of religious profession and worship, without discrimination or preference,

shall forever hereafter be allowed, within this State, to all mankind.”); Pa. Const.,

art. I, § 2 (1776) (“[N]o authority can or ought to be vested in, or assumed by any

power whatever, that shall in any case interfere with, or in any manner controul, the

right of conscience in the free exercise of religious worship.”); N.H. Const., art. I, § 5

(1784) (“Every individual has a natural and unalienable right to worship G[ ]D

according to the dictates of his own conscience, and reason; and no subject shall be

- 26 -
hurt, molested, or restrained in his person, liberty, or estate, for worshipping G[ ]D,

in the manner and season most agreeable to the dictates of his own conscience.”).33

This Court and individual Justices have repeatedly recognized that worship is

at the heart of what has always been protected by the Religion Clauses. Barnette

specifically held that “freedom[ ] of . . . worship” could not be infringed on the “slender

grounds” of rational basis scrutiny but instead is “susceptible of restriction only to

prevent grave and immediate danger to interests which the state may lawfully

protect.” 319 U.S. at 639. Indeed, although its doctrinal validity has been put in

question, even Employment Division v. Smith sees a special role for “worship” under

the Free Exercise Clause. Smith specifically held that “[i]t would doubtless be

unconstitutional” to ban activities undertaken “for worship purposes.” 494 U.S. 872,

877–78 (1990) (citations omitted). In the same vein, Justices have repeatedly singled

out worship as obviously protected religious activity. See, e.g., Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 199 (2012) (Alito, J.,

joined by Kagan, J., concurring) (“The First Amendment protects the freedom of

religious groups to engage in certain key religious activities, including the conducting

of worship services . . . .”); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2284

(2020) (Breyer, J., dissenting) (Founders “came to believe ‘with a passionate

conviction that they were entitled to worship G[ ]d in their own way . . . .’” (quoting

C. Radcliffe, The Law & Its Compass 71 (1960)); Am. Legion v. Am. Humanist Ass’n,

33 Some state constitutions focused solely on freedom of worship, but “[t]he limitation to ‘worship’ was
not carried over into the federal free exercise clause.” Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1460 (1990).

- 27 -
139 S. Ct. 2067, 2096 (2019) (Thomas, J., concurring) (“punish[ing] dissenting

worship” forbidden by Religion Clauses).

In this case, the Governor’s restrictions in each of the three zones single out

“houses of worship” for disparate treatment by imposing stringent capacity

limitations yet permitting comparable secular conduct, such as offices, retail stores,

malls, and schools, as well as a host of other “essential” businesses and an undefined

“essential” gatherings category, to operate under preferential capacity requirements.

In the Red and Orange Zones, the Governor restricts houses of worship to a 10-

and 25-person maximum—no matter the size of the place of worship. App. 324. Yet

an undefined category of “[ ]essential gatherings” is exempted, and thus favored over

religious gatherings. See id. Further, Red Zone restrictions explicitly do not apply to

secular “essential” businesses, thereby allowing (under the Governor’s definition of

“essential”) industries such as “financial services and research” and manufacturing,

child care services, and farmer’s markets, App. 192–93, to operate in group settings

even in these “most severe[ly]” restricted zones, App. 324.

In the Orange Zones, the Governor closes only those specific “non-essential

businesses, for which there is a higher risk associated with the transmission of the

COVID-19 virus.” Id. As Judge Park explained, because “numerous businesses

deemed ‘essential’ may operate with no such restrictions” that are imposed on houses

of worship, the Cluster Initiative’s “disparate treatment of religious and secular

institutions is plainly not neutral.” App. 6. “[A] generally applicable policy

incidentally burdens religion[.] . . . Instead, the Governor has selected some

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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.” App. 7. The Governor has “impermissibl[y] . . .

target[ed] [Applicants] and their religious practices” for disfavored treatment, which

shows the “[t]he design of the[ ] law[ ] accomplishes [ ] a ‘religious gerrymander.’”

Lukumi, 508 U.S. at 535–38 (quoting Walz v. Tax Comm’n of City of New York, 397

U.S. 664, 696 (1970) (Harlan, J., concurring)). If Applicants used their exact same

building for some approved purpose other than religious worship—running a

brokerage service, selling widgets, or reporting the news—they would not face such

draconian limits.

3. Jacobson Does Not Permit The State To Discriminate Against

Religious Minorities Or Target Religious Practice

Jacobson does not change any of these conclusions. Jacobson rejected a

substantive due process challenge to an across-the-board mandatory vaccination law.

Jacobson came before the First Amendment was incorporated against the states, and

it did not address the Free Exercise Clause. Thus, “[i]t is a considerable stretch to

read the decision as establishing the test to be applied when statewide measures of

indefinite duration are challenged under the First Amendment or other provisions

not at issue in that case.” Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603,

2608 (2020) (Alito, J., dissenting). Jacobson also acknowledged that a State’s power

to protect public health and safety is “subject, of course, . . . to the condition that no

rule . . . shall contravene the Constitution of the United States, nor infringe any right

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granted or secured by that instrument.” 197 U.S. at 25. And a public health measure,

“even if based on the acknowledged police powers of a state, must always yield in case

of conflict with . . . any right which [the Constitution] gives or secures.” Id.

In any event, even though Jacobson authorized vaccine regulations “applicable

equally to all in like condition,” id at 30, it surely cannot displace or undermine

judicial review where, as here, the Governor is targeting a particular minority for

disfavored treatment, in violation of Lukumi and Masterpiece Cakeshop. See, e.g.,

Zucht v. King, 260 U.S. 174, 176 (1922) (Jacobson merely “settled that it is within the

police power of a state to provide for compulsory vaccination”).

Finally, even when denying requests for injunctive relief pending appeal, this

Court has acknowledged the stark difference between generally applicable COVID-

19 restrictions that permissibly impact religious practice under Jacobson, and those

that single out religious activity. S. Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring)

(“Although California’s guidelines place restrictions on places of worship, those

restrictions appear consistent with the Free Exercise Clause of the First Amendment.

Similar or more severe restrictions apply to comparable secular gatherings . . . .”).

Thus, even if South Bay was applicable beyond its precise circumstances, but see

Mandel v. Bradley, 432 U.S. 173, 176 (1977), while “[t]he Constitution allows a State

to impose certain calculated, neutral restrictions,” it “emphatically, does not allow a

State” to “more aggressively” seek out religious activity for such restrictions. Harvest

Rock Church, Inc. v. Newsom, 977 F.3d 728, 731–32 (9th Cir. 2020) (O’Scannlain, J.,

dissenting). Therefore, while Jacobson may provide public officials broad latitude

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during pandemics, it is possible for the government to “exceed” that latitude, S. Bay,

140 S. Ct. at 1613–14 (Roberts, C.J., concurring), and it has done so here both by

discriminating against a religious minority and by treating similar secular conduct

more favorably than religion.

B. The Governor’s Cluster Initiative Cannot Withstand Strict Scrutiny

To survive strict scrutiny, a law must be the least restrictive means of

furthering a compelling interest. Lukumi, 508 U.S. at 531–32. This standard “is

exceptionally demanding,” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728

(2014), and to meet it, the State must provide evidence, not only argument. Gonzales

v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006). Where

“many” other jurisdictions have furthered the same interest with less restrictive

means, the government “must, at a minimum, offer persuasive reasons why it

believes that it must take a different course.” Holt v. Hobbs, 574 U.S. 352, 369 (2015).

The Governor’s restrictions plainly do not satisfy that burden.

The Cluster Initiative is not the “least restrictive means” to curbing COVID-

19 spread; indeed, the Governor admitted as much when he explained that initiative

was “not a policy being written by a scalpel,” but one “cut by a hatchet.” App. 117.

One less-restrictive alternative is the most obvious: the Governor could enforce his

own pre-existing health guidelines. The Governor believes that the current outbreak

is the result of people not following the guidelines he previously set out, stating before

issuing his new restrictions that “how’s [COVID-19] increasing? Because people are

not following the rules.” App. 100. Targeting the Orthodox Jewish community by

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shutting down synagogues that indisputably have complied with the Governor’s

guidelines is not the least restrictive means of stemming COVID-19 spread. See

McCullen v. Coakley, 573 U.S. 464, 495 (2014) (“the police appear perfectly capable

of singling out lawbreakers” and therefore the government must use existing laws).

Another less-restrictive alternative is to follow the practices in numerous other

jurisdictions that have managed the virus without limiting religious worship so

severely (or at all). See infra pp. 36–38.

The Cluster Initiative is also not narrowly tailored because of the initiative’s

special restrictions of “worship,” as opposed to other activities that have a similar,

and even greater, impact on COVID-19 spread. A “law cannot be regarded as

protecting an interest of the highest order when it leaves appreciable damage to that

supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (citation omitted).

Yet here, while the Cluster Initiative restricts houses of worship, it imposes less

stringent restrictions on “pet shops, liquor stores, and other businesses,” App. 6

(Park, J., dissenting), among an array of other activity, see supra pp. 5–11. Nor do

the Cluster Initiative’s “fixed capacity limits . . . account in any way for the sizes of

houses of worship in red or orange zones.” App. 8 (Park, J., dissenting).

At bottom, the only interest consistent with the Governor’s actions is the one

he “candid[ly]” articulated on October 6: responding to a climate of “fear” in the City,

which the Governor thought he could address with a blunt policy cut by “a hatchet.”

App. 117. Indeed, the Governor acknowledged that “the fear [was] too high” in the

City to take “a smarter, more tailored approach” because “we have a real problem

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with fear and anxiety” and people “moving out.” App. 383, 389. But “unsubstantiated”

“fear[s] . . . are not permissible bases for” overriding fundamental rights. City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 448 (1985). Even in a pandemic,

constitutional rights deserve better than a hatchet job.

II. The Circumstances Are Critical And Exigent

Absent temporary relief, the Governor’s Cluster Initiative is causing

immediate, massive, and irreparable harm to Applicants, making it impossible for

their members to gather for worship. By contrast, allowing Applicants to resume

worship subject to generally applicable public health guidelines—including capacity

restrictions, masking, and distancing rules—will cause no harm to the government;

it will bring New York back into line with its sister States. In such circumstances,

interim relief is proper. See, e.g., Williams v. Rhodes, 89 S. Ct. 1, 2 (1968).

A. The Ongoing Harm To Applicants Is Real and Immediate

The ongoing burden on Applicants’ religious exercise is severe.

First, the burden on Applicants is particularly acute, even as among other faith

groups. Applicants cannot simply “modif[y]” their religious practices to avoid

irreparable harm, as the district court concluded. App. 75. Rather, the Governor’s

restrictions render it “impossible” for Applicants to worship in synagogue and to

engage in core religious practices. App. 168, 173, 178. Many synagogues serve several

hundred men and women each week, and have occupancy capacities that permit them

to have several hundred worshippers in the building at any one time. App. 167, 172,

177. But under the Cluster Initiative’s restrictions, “it is practically impossible to

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conduct services for all of Plaintiffs’ congregants” within a Sabbath timeframe, from

Friday sundown until Saturday sundown. App. 168, 173, 178. And because Orthodox

Jews are prohibited from vehicular travel on Saturdays and religious holidays, the

Governor’s restrictions disproportionately harm Orthodox Jewish services. App. 170,

175, 180, 183. While practitioners of other faiths can drive to nearby houses of

worship outside of their restricted zones, Orthodox Jews are unable to do so. Id.

Likewise, Orthodox Jews’ observance of holy days has been uniquely and

intentionally burdened under the restrictions. The Governor timed his religious

shutdown to begin on the eve of a Jewish holiday weekend, immediately before

Hoshana Rabbah, Shmini Atzeres, and Simchas Torah—all holidays which preclude

observant Jews from traveling by car to worship. Id.

Second, the Governor is engaged in open and obvious targeting of Orthodox

Jews and their religious worship and observance, which is itself a distinct and

irreparable injury. This Court has recognized that unconstitutional discrimination

constitutes its own form of injury. See Ne. Fla. Chapter of Assoc. Gen. Contractors of

Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). This is particularly true in the

context of protecting the enumerated right to Free Exercise because religious

discrimination itself “is odious to our Constitution . . . , and cannot stand.” Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017).

The discrimination injury here is heightened given the long history of

recognized discrimination against Orthodox Jews by New York area governments.

For instance, New York City was recently caught “purposefully” and “exclusively”

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“singl[ing] out religious conduct performed by a subset of Orthodox Jews” for “special

burdens” which the City chose not to impose on similar secular conduct. Cent.

Rabbinical Cong. of U.S. & Canada v. N.Y. Dep’t of Health & Mental Hygiene, 763

F.3d 183, 186, 194 (2d Cir. 2014) (emphasis in original). And the Second Circuit has

found that whole municipalities in New York were incorporated out of sheer

“animosity toward Orthodox Jews as a group.” LeBlanc-Sternberg v. Fletcher, 67 F.3d

412, 431 (2d Cir. 1995).34 More broadly, Jews have long been the leading target for

religious hate crimes nationwide. In 2018 alone, almost 60% of religious hate crimes

were targeted at Jews—which was over 40 points higher than the next targeted group

and more than all other targeted groups combined.35

B. Applicants’ Worship Activities, Undertaken In Strict Accordance With

CDC Guidelines, Do Not Harm The Public Interests

Since the beginning of the pandemic, it is undisputed that Applicants have

complied with all State and City mandates. App. 167–68, 172–73; 177–78. Applicants

split traditional worship services into smaller group settings to ensure their

congregations followed social distancing protocols, and they require their congregants

to wear masks during all services—rules with which congregants have fully complied.

App. 168, 172–73, 178. By carefully and responsibly implementing health and safety

34See, e.g., Congregation Rabbinical Coll. of Tartikov v. Vill. of Pomona, NY, 945 F.3d 83, 122 (2d Cir.
2019) (affirming finding of “religious animus” in governmental action against Orthodox Jews); Tenafly
Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 153 (3d Cir. 2002) (residents “expressed vehement
objections” to having “Orthodox Jews” move to town; one Council member “voiced his ‘serious concern’
that ‘Ultra–Orthodox’ Jews might ‘stone[] cars that drive down the streets on the Sabbath’”).
35 See https://ucr.fbi.gov/hate-crime/2018/topic-pages/victims.

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protocols, Applicants have been able to allow their members to continue to practice

their religious beliefs while still safeguarding from the spread of COVID-19.

The Governor does not dispute that Applicants have rigorously implemented

and adhered to all health protocols and that there has been no outbreak COVID-19

in their congregations. Indeed, the Governor himself has indicated that merely

following his prior rules sufficed. See App. 100 (“[H]ow’s it increasing? Because people

are not following the rules;” “[N]one of these rules are going to make a darn, if you

don’t have the enforcement.”). That is presumably why the Governor is willing to

allow many other secular activities to continue unabated and for more hours than

worship, so long as participants are masked and socially distanced. And it is why

masked, socially distanced worship is permitted across the country, and across the

non-Orthodox neighborhoods of the State.

Tellingly, the Governor does not claim that these Orthodox Jewish synagogues

ever broke any rules or contributed to the spread of COVID-19. The best the Governor

can offer is the claim that some Orthodox Jewish synagogues allegedly broke rules

and contributed to spread elsewhere. That cannot be enough to overcome the

undisputed facts that Applicants’ masked and socially distant worship poses no

threat to the government’s interests.

C. The Cluster Initiative Is Out Of Step With Other States

Nor would a grant of temporary relief intrude on any legitimate interest of the

State; in fact, temporary relief would bring New York into line with the approaches

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of other States, most of which have no capacity limits on places of worship, and none

of which have anything like New York’s discriminatory Cluster Initiative.

For example, as of October 5 (the same week that the Governor was preparing

to ban nearly all in-person religious worship in the targeted zones), thirty-one other

States had no statewide numerical caps on religious worship. App. 512–20. This

widespread approach is not surprising in light of our Nation’s history and tradition

of robustly protecting religious worship as such.

Even among states that have adopted a more restrictive approach, New York

is an outlier. The California and Nevada in-person worship restrictions that this

Court has already considered are far more permissive of religious worship than is

New York’s cluster system. Nevada allows in-person worship of up to “250 people or

50 percent of fire code capacity.”36 Venues holding more than 2,500 can apply to allow

for larger crowds. Id. And California permits attendance up to “25% of capacity or 100

people, whichever is less” in counties experiencing positivity rates between 5% to 8%

and “50% of capacity or 200 people, whichever is less” in counties with positivity rates

between 2% and 4.9%.37 California prohibits indoor worship only when a county’s

positivity rate exceeds 8%.38

36 Nevada Places of Worship and Life-Rites Ceremonies (Sept. 29, 2020),

https://nvhealthresponse.nv.gov/wp-content/uploads/2020/09/Nevada-Places-of-Worship-and-Life-
Rites-Ceremonies.pdf.
37 Quick Answers Places of Worship and Cultural Ceremonies, COVID-19.CA.GOV,
https://covid19.ca.gov/search/?q=worship#gsc.tab=0&gsc.q=worship&gsc.page=1; Understand Your
County’s Status, COVID-19.CA.GOV, https://covid19.ca.gov/safer-economy/.
38 See references supra note 37.

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 New York’s neighbors are also far more accommodating of religious exercise.

Pennsylvania completely exempts houses of worship from its regulations on social

gatherings.39 Connecticut and Massachusetts likewise provide that houses of worship

can welcome 50% of their occupancy.40 And in New Jersey, indoor worship can occur

with “150 people or 25% of a room’s capacity—whichever number is lower.”41

New York’s regime is also far more severe than other jurisdictions with similar

rates of COVID-19 infection. Maryland allows for houses of worship to open at 75%

capacity.42 In Washington, D.C., houses of worship can accommodate 50% of their

capacity, up to 100 people.43 And Virginia completely exempts religious services from

its numerical cap on gatherings provided attendees comply with basic precautions

like mask-wearing and social distancing.44

39 COVID-19 Guidance for Businesses (Oct. 6, 2020), https://perma.cc/GCR6-UPUG.

40 Sector Rules and Certification for Reopen, CT.gov, https://portal.ct.gov/DECD/Content/
Coronavirus-Business-Recovery/Sector-Rules-and-Certification-for-Reopen; Safety Standards and
Checklist: Places of Worship (Oct. 29, 2020), https://www.mass.gov/info-details/safety-standards-and-
checklist-places-of-worship.
41Are Churches and Other Houses of Worship Offering Services? What Are the Social Distancing
Requirements?, NJ.gov (Oct. 28, 2020), https://covid19.nj.gov/faqs/nj-information/reopening-guidance-
and-restrictions/are-churches-and-other-houses-of-worship-offering-services-what-are-the-social-
distancing-requirements.
42 Md. Exec. Order No. 20-09-01-01 (Sept. 1, 2020), https://perma.cc/Z7JD-YPQY.
43 Phase Two Guidance Coronavirus 2019 (COVID-19) Guidance for Places of Worship,
Coronavirus.DC.gov (Oct. 10, 2020),
https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/page_content/attachments/COVID-
19_DC_Health_%20Guidance_for_Places_of_Worship_2020.10.10-p2.pdf.
44 Va. Exec. Order No. 67 (6th amend. Nov. 13, 2020), https://www.governor.virginia.gov/media/
governorvirginiagov/executive-actions/EO-67-SIXTH-AMENDED-and-Order-of-Public-Health-Emer
gency-Seven---Phase-Three-Further-Adjusting-of-Certain-Temporary-Restrictions-Due-to-Novel-Cor
onavirus-(COVID-19).pdf.

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III. In The Alternative, The Court Should Also Grant Certiorari Before Judgment

In the alternative to entering an injunction pending appeal, the Court should

grant certiorari before judgment in the Court of Appeals and enjoin the Governor’s

actions pending disposition by this Court. See 28 U.S.C. § 2101(e). Religiously

discriminatory COVID-19 restrictions are an ongoing problem of nationwide scope—

yet without prompt action the Court will be unable to give additional guidance on

these issues until next Term. More to the point, the Governor’s targeted shutdown of

synagogues in a City home to hundreds of thousands of Orthodox Jews is itself an

issue of “imperative public importance,” S. Ct. R. 11—fundamentally contradicting

the “‘immunities of citizenship’” promised at the founding to people of all faiths,

including the “community of American Jews,” Town of Greece v. Galloway, 572 U.S.

565, 636–37 (2014) (Kagan, J., dissenting) (quoting George Washington, Letter to

Newport Hebrew Congregation (Aug. 18, 1790)).

Certiorari is further warranted given the conflicts between the Second Circuit’s

decision and decisions of other Circuits and of this Court. The Second Circuit declined

to apply heightened scrutiny even though the Cluster Initiative treated houses of

worship worse than so-called “essential” businesses, App. 6 (Park, J., dissenting),

simply because (in some zones) the Cluster Initiative also imposed stringent

restrictions on other entities, like schools and restaurants, App. 4 (majority). Yet the

Sixth Circuit subjected a Kentucky COVID-19 order to heightened scrutiny because

it closed houses of worship but not other “life-sustaining” organizations, without

regard to which other entities were closed, too. Roberts v. Neace, 958 F.3d 409, 411–

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15 (6th Cir. 2020) (per curiam). And the Third Circuit has held that even a single

secular exemption to an otherwise-applicable prohibition can render a law not neutral

and generally applicable as applied to religion, regardless whether other secular

conduct is likewise banned. Fraternal Order of Police v. City of Newark, 170 F.3d 359,

365–66 (3d Cir. 1999); see Calvary Chapel, 140 S. Ct. at 2613 (Kavanaugh, J.,

dissenting) (“The point is not whether one or a few secular analogs are regulated. The

question is whether a single secular analog is not regulated.” (citation omitted)

(emphasis in original)).

Moreover, the Second Circuit’s refusal to apply strict scrutiny to an order

targeted at religion runs afoul of this Court’s well-settled precedent, as explained

above. This case—in which the targeting is not just obvious but admitted—is the

proper vehicle to resolve these conflicts.

CONCLUSION

This Court should issue the requested injunction.

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 Respectfully submitted,

/s/ Avi Schick

ERIC C. RASSBACH AVI SCHICK
DANIEL BLOMBERG Counsel of Record
ADÈLE AUXIER KEIM MISHA TSEYTLIN
JOSEPH DAVIS W. ALEX SMITH
THE BECKET FUND FOR SEAN T.H. DUTTON
RELIGIOUS LIBERTY TROUTMAN PEPPER
1200 New Hampshire Ave. N.W., HAMILTON SANDERS LLP
Ste. 700 875 Third Avenue
Washington, DC 20036 New York, NY 10022
(202) 955-0095 (212) 704-6126
[email protected] [email protected]

Counsel for Applicants

November 2020

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