20-3572; 20-3590
`Agudath Israel of America v. Cuomo; Roman Catholic Diocese of Brooklyn v. Cuomo
`
`United States Court of Appeals
`for the Second Circuit
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`August Term, 2020
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`(Argued: December 18, 2020
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`
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`Decided: December 28, 2020)
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`Docket Nos. 20-3572; 20-3590
`_____________________________________
`
`AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF
`KEW GARDEN HILLS, AGUDATH ISRAEL OF MADISON,
`AGUDATH ISRAEL OF BAYSWATER, RABBI YISROEL REISMAN,
`RABBI MENACHEM FEIFER, STEVEN SAPHIRSTEIN,
`
`
`
`
`
`Plaintiffs-Appellants,
`v.
`
`ANDREW M. CUOMO, GOVERNOR OF THE STATE OF NEW YORK,
`IN HIS OFFICIAL CAPACITY,
`
`
`
`Defendant-Appellee.
`
`_____________________________________
`
`THE ROMAN CATHOLIC DIOCESE OF BROOKLYN, NEW YORK,
`
`
`
`
`
`Plaintiff-Appellant,
`v.
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`GOVERNOR ANDREW M. CUOMO, IN HIS OFFICIAL CAPACITY,
`
`
`
`
`
`Defendant-Appellee.
`_____________________________________
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`Before:
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`
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`LIVINGSTON, Chief Judge, PARK and MENASHI, Circuit Judges.
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`On October 6, 2020, in response to an increase in COVID-19 cases, Governor
`Cuomo issued Executive Order 202.68 (the “Order”), which, among other things,
`limits the maximum allowable occupancy in “houses of worship” in certain zones
`to 10 or 25 people. Appellants Roman Catholic Diocese of Brooklyn (the
`“Diocese”) and Agudath Israel of America (“Agudath Israel”) seek to enjoin the
`Governor from enforcing the 10- and 25-person capacity limits. They argue the
`Order violates the Free Exercise Clause of the First Amendment. The United States
`District Court for the Eastern District of New York (Matsumoto, J., & Garaufis, J.)
`denied their motions for a preliminary injunction.
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`Appellants moved for injunctions pending appeal, which a divided motions
`panel of this Court denied. Appellants then sought injunctive relief from the
`United States Supreme Court, which granted writs of injunction prohibiting the
`Governor from enforcing the Order’s 10- and 25-person capacity limits pending
`disposition of this appeal. See Roman Cath. Diocese of Brooklyn v. Cuomo, 141
`S. Ct. 63 (2020); Agudath Israel v. Cuomo, No. 20A90, 2020 WL 6954120 (U.S. Nov.
`25, 2020). The Supreme Court found that Appellants were likely to succeed on the
`merits, applying strict scrutiny to the Order because it is not neutral on its face and
`imposes greater restrictions on religious activities than on other activities the
`Governor considers “essential.”
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`In light of the Supreme Court’s decision, we hold that the Order’s regulation
`of “houses of worship” is subject to strict scrutiny and that its fixed capacity limits
`are not narrowly tailored to stem the spread of COVID-19. Appellants have
`established irreparable harm caused by the fixed capacity limits, and the public
`interest favors granting injunctive relief.
`
`With respect to the Diocese’s appeal, No. 20-3590, we REVERSE and
`REMAND with directions for the district court to issue a preliminary injunction
`prohibiting the Governor from enforcing the Order’s 10- and 25-person capacity
`limits. With respect to Agudath Israel’s appeal, No. 20-3572, we REVERSE in part
`and REMAND for the issuance of a preliminary injunction as to those fixed
`capacity limits. We also VACATE the district court’s denial of Agudath Israel’s
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`motion for a preliminary injunction as to the Order’s 25% and 33% capacity limits,
`and REMAND for the district court to determine in the first instance whether those
`limits should be enjoined in light of the Supreme Court’s decision and this opinion.
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`
`AVI SCHICK (W. Alex Smith, Misha Tseytlin,
`on the brief), Troutman Pepper Hamilton
`Sanders LLP, New York, NY & Chicago, IL,
`for Plaintiffs-Appellants in 20-3572.
`
`RANDY M. MASTRO (Akiva Shapiro, William
`J. Moccia, Lee R. Crain, on the brief), Gibson,
`Dunn & Crutcher LLP, New York, NY, for
`Plaintiff-Appellant in 20-3590.
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`BRIAN D. GINSBERG (Barbara D. Underwood,
`Solicitor General, Andrea Oser, Deputy
`Solicitor General, Dustin
`J. Brockner,
`Assistant Solicitor General, on the brief), for
`Letitia James, Attorney General of the State
`of New York, Albany, NY, for Defendant-
`Appellee in 20-3572 & 20-3590.
`
`
`PARK, Circuit Judge:
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`In response to the COVID-19 pandemic, the Governor of New York issued
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`an executive order limiting the maximum allowable occupancy in “houses of
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`worship” in certain “zones” to 10 or 25 people. Other businesses that the Governor
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`considers to be “essential,” however, face no such restrictions. Appellants Roman
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`Catholic Diocese of Brooklyn (the “Diocese”) and Agudath Israel of America
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`(“Agudath Israel”) seek to enjoin the Governor from enforcing the capacity limits,
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`which they allege violate the Free Exercise Clause of the First Amendment.
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`The Supreme Court already found that Appellants have made “a strong
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`showing” that their claim is likely to prevail. See Roman Cath. Diocese of Brooklyn v.
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`Cuomo, 141 S. Ct. 63, 66 (2020). We agree. The Governor’s order is subject to strict
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`scrutiny because it is not neutral on its face and imposes greater restrictions on
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`religious activities than on secular ones. We thus REVERSE and REMAND in part,
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`directing the district courts to enjoin the Governor from enforcing the Order’s 10-
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`and 25-person capacity limits. We VACATE and REMAND in part for the district
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`court to determine in the first instance whether the 25% and 33% capacity limits
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`can satisfy strict scrutiny.
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`I. BACKGROUND
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`A.
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`COVID-19 and the Governor’s Response
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`More than 36,000 New Yorkers have died from COVID-19, and New York
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`has had the second-highest number of deaths per capita of any state. 1 On
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`March 7, 2020, Governor Cuomo declared a disaster emergency in the State, which
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`allows him to exercise extraordinary executive powers. See N.Y. Exec. Law § 28.
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`1 United States COVID-19 Cases & Deaths by State, Ctrs. for Disease Control & Prevention,
`https://covid.cdc.gov/covid-data-tracker (updated Dec. 26, 2020).
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`He can “temporarily suspend any statute, local law, ordinance, or orders, rules or
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`regulations, or parts thereof, of any agency,” and can “issue any directive . . .
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`necessary to cope with the disaster.” Id. § 29-a. Suspensions and directives under
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`this law expire after 30 days, but the Governor may renew them an unlimited
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`number of times. Id. The legislature of New York can terminate suspensions and
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`directives “by concurrent resolution,” but the Governor’s actions pursuant to
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`Executive Law § 29-a do not otherwise require legislative consultation or approval.
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`Id.
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`Governors have historically exercised this emergency authority in a limited
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`and localized manner, most often in response to natural disasters such as severe
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`storms or flooding.2 Governor Cuomo’s executive orders during the COVID-19
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`pandemic, however, have been unprecedented in their number, breadth, and
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`duration. From March to December 2020, he has issued almost 90 executive orders
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`2 See, e.g., N.Y. Exec. Order 195 (May 20, 2019) (declaring disaster emergency in specified
`counties due to “high water levels on Lake Ontario and the St. Lawrence River . . . causing the
`potential for lakeshore flooding, widespread erosion, and water damage”); N.Y. Exec. Order 193
`(Jan. 19, 2019) (same, due to a “severe winter storm”).
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`relating to the pandemic.3 Those orders affect nearly every aspect of life in the
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`State, including restrictions on activities like private gatherings and travel.4
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`B.
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`Executive Order 202.68
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`In response to a rise in COVID-19 cases in certain “hot spots” in the State,
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`on October 6, 2020, the Governor issued Executive Order 202.68 (the “Order”), the
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`source of the restrictions challenged here.5 The Order authorizes the New York
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`State Department of Health to “determine areas in the State that require enhanced
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`public health restrictions,” classifying those areas as red, orange, or yellow zones,
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`and imposes zone-specific restrictions on various activities.
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`In red zones, the Order prohibits all “[n]on-essential gatherings,” requires
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`all “non-essential businesses” to “reduce in-person workforce by 100%,” and
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`allows restaurants to remain open “for takeout or delivery only.” The Order
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`3 See Executive Orders, Off. of the Governor, https://www.governor.ny.gov/executive-
`orders (last visited Dec. 27, 2020). By comparison, the Governor averaged around 35 executive
`orders per year in the preceding five years. See id.
`4 See, e.g., N.Y. Exec. Order 202.6 (Mar. 18, 2020) (ordering certain employers to “reduce
`[their] in-person workforce at any work locations by 50%”); N.Y. Exec Order 205.2 (Oct. 31, 2020)
`(requiring certain “travelers entering New York” from a non-contiguous state to “quarantine for
`a period of 14 days”).
`5 Executive Order 202.68 was in effect through November 5, 2020. On November 3, 2020,
`the Governor extended the restrictions contained in Executive Order 202.68 through December 3,
`2020. See N.Y. Exec. Order 202.72 (Nov. 3, 2020). And on December 2, 2020, the Governor again
`extended the restrictions through January 1, 2021. See N.Y. Exec. Order 202.79 (Dec. 2, 2020).
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`imposes no additional restrictions or limitations on other businesses or gatherings,
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`however, and schools may continue in-person instruction.6 The Order specifies
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`only one other category of entities in red zones: “[H]ouses of worship,” which are
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`subject to a capacity limit of “25% of maximum occupancy or 10 people, whichever
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`is fewer.”
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`In orange zones, the Order limits “[n]on-essential gatherings” to 10 people
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`and directs the closure of “certain non-essential businesses, for which there is a
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`higher risk associated with the transmission of the COVID-19 virus,” such as gyms
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`and tattoo parlors. Restaurants may “provide outdoor service,” all other
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`businesses are again free to operate without additional restrictions other than
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`those imposed by previous orders, and schools may remain open for in-person
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`instruction, subject again to testing requirements. Again, “houses of worship” in
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`orange zones are separately identified and subject to a capacity limit of “33% of
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`maximum occupancy or 25 people, whichever is fewer.”
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`6 “Essential” businesses are subject to a 50% occupancy cap under earlier imposed
`restrictions. The Order originally directed the closure of schools in red and orange zones, but
`was later modified to allow schools to “conduct in-person instruction . . . subject to compliance
`with guidance and directives of the Department of Health,” including rigorous testing
`requirements. See N.Y. Exec. Order 202.79 (Dec. 2, 2020).
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`In yellow zones, which are not at issue here, the Order limits “[n]on-
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`essential gatherings” to “no more than 25 people.” Indoor dining is permitted at
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`restaurants, and schools remain open. No additional restrictions are imposed on
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`any businesses, whether “essential” or “non-essential.” Once more, however,
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`“houses of worship” are limited to “50% of [their] maximum occupancy.”7
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`By its terms, the Order does not apply to “essential” businesses, which State
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`guidance describes as those “providing products or services that are required to
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`maintain the health, welfare and safety of the citizens of New York State.”8 This
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`category includes not only grocery stores and hospitals, but also many businesses
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`with more questionable connections to “health, welfare, and safety”—including
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`liquor stores, pet shops, and financial institutions providing “services related to
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`financial markets.”9 The Governor has neither explained the process by which he
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`deemed some businesses “essential” nor identified evidence supporting the
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`classifications. Importantly, the Governor has not asserted that his categorization
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`7 In yellow zones, other executive orders and regulations impose a similar 50% occupancy
`cap on all essential and non-essential businesses that is not apparent on the face of the Order.
`8 Frequently Asked Questions for Determining Whether a Business Is Subject to a Workforce
`Reduction Under Recent Executive Order Enacted to Address COVID-19 Outbreak, Empire State Dev.,
`https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_032220.pdf.
`9 See Essential Business Guidance Related to Determining Whether a Business Enterprise Is
`to a Workforce Reduction Under Executive Order 202.68, Empire State Dev.,
`Subject
`https://esd.ny.gov/ny-cluster-action-initiative-guidance (updated Dec. 15, 2020).
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`of businesses as “essential” or “non-essential” was based on any assessment of
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`COVID-19 transmission risk.
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`Before issuing the Order, the Governor made public statements indicating
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`that the restrictions were motivated in part by concerns about religious gatherings.
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`For example, he noted that the source of the first coronavirus hot spot in New York
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`“was an Orthodox Jewish man who went to a temple” and observed that
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`“Orthodox Jewish gatherings often are very, very large and we’ve seen what one
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`person can do in a group.”10 The Governor then said that he would be meeting
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`with members of the “ultra-Orthodox [Jewish] community,” and if they would
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`“not agree to enforce the rules, then we’ll close the institutions down.” Id. One
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`day later, he issued the Order.
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`Three days after issuing the Order, the Governor explained that it addresses
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`“a predominantly ultra-orthodox cluster.”11 Five days later, he said the State was
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`“having issues in the Orthodox Jewish community in New York, where because
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`10 Governor Cuomo Updates New Yorkers on State’s Progress During COVID-19 Pandemic, Off.
`of the Governor (Oct. 5, 2020), https://www.governor.ny.gov/news/video-audio-photos-rush-
`transcript-governor-cuomo-updates-new-yorkers-states-progress-during-1.
`11 Governor Cuomo Is a Guest on CNN Newsroom with Poppy Harlow and Jim Sciutto, Off. of
`the Governor (Oct. 9, 2020), https://www.governor.ny.gov/news/audio-rush-transcript-governor-
`cuomo-guest-cnn-newsroom-poppy-harlow-and-jim-sciutto.
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`of their religious practices, . . . we’re seeing a spread.”12 He said that state-level
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`enforcement was necessary because the “ultra-Orthodox communities . . . are also
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`very politically powerful.”13
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`The Order was not accompanied by any contemporaneous explanation of
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`its specific limits on houses of worship. In this litigation, however, the Governor
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`offered declarations from Dr. Howard A. Zucker, Commissioner of the State
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`Department of Health, and Dr. Debra S. Blog, Director of the Department of
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`Health’s Division of Epidemiology. The declarations explained that “large
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`gatherings present the greatest risk for rapid and widespread transmission of the
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`virus in a community,” citing reports of “super-spreader events” at a church in
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`Arkansas, a wedding in Maine, a religious service in India, and a choir practice in
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`Washington. Joint App’x, No. 20-3590, at 312–18. Comparing religious gatherings
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`to restaurants, the declarations also asserted that “the idea [of a religious service]
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`is a group of people coming together as a community to interact and pray
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`12 Appellants’ Br., No. 20-3572, at 9–10 (quoting Mairead McArdle, Cuomo Says ‘Religious
`Practices’ of Orthodox Jews Causing Virus to Spread in New York City, National Review (Oct. 14, 2020),
`https://www.nationalreview.com/news/cuomo-says-religious-practices-of-orthodox-jews-
`causing-virus-to-spread-in-new-york-city).
`13 Governor Cuomo Announces State Will Withhold Funds for Localities and Schools in
`COVID-19 Cluster Zones If They Fail to Enforce Public Health Law, Off. of the Governor (Oct. 14,
`2020), https://www.governor.ny.gov/news/audio-rush-transcript-governor-cuomo-announces-
`state-will-withhold-funds-localities-and-schools.
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`together,” that “[g]enerally, the congregants are arriving and leaving at the same
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`time and are together over an extended period of time,” and that “[t]his type of
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`close interaction, while having deep meaning for the congregants, poses a higher
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`risk of transmission of the virus.” Id. at 318. The declarations did not purport to
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`assess the transmission risk of religious worship based on any data, much less to
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`compare religious worship with “essential” activities, and they did not explain
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`how the Governor arrived at the specific numerical and percentage capacity
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`limitations in the Order.
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`The Governor initially designated restricted zones in Brooklyn and Queens
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`in New York City, as well as in Broome, Orange, and Rockland counties. Since
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`issuing the Order in October, the Governor has changed the zone designations at
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`least nine times.14
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`C.
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`Parties
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`1.
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`Roman Catholic Diocese of Brooklyn
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`The Diocese of Brooklyn is a Roman Catholic diocese with 210 churches in
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`Brooklyn and Queens. In 2019, the Diocese held approximately 1,000 Masses each
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`Sunday, with an average weekly attendance of almost 230,000.
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`14 The Governor announced changes to zone boundaries on October 21 and 28;
`November 6, 9, 11, 18, 19, and 23; and December 14.
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`Since March 2020, the Diocese has taken various precautions to protect its
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`parishioners and the community. On March 16, 2020—before any government
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`lockdowns were imposed in New York—the Diocese canceled all public Masses.
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`Three days later, it ordered a complete shutdown of all of its churches, effective
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`on March 20. During the shutdown, the Diocese convened a commission to
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`prepare for an eventual re-opening. In consultation with medical professionals,
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`the commission developed a set of safety protocols, including regular cleaning of
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`churches, limited hours, and masking and distancing requirements.
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`In June 2020, the Diocese began to re-open for in-person Mass, beginning
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`with weekday services and expanding to weekend Masses in early July. Since re-
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`opening, the Diocese has required each of its churches to abide by the safety
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`protocols developed by its commission, and Diocesan officials have inspected
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`services to ensure compliance. In addition, the Diocese voluntarily limited all
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`church services to 25% of building capacity, maintaining this restriction even after
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`the State increased the statewide limit for gatherings beyond 25%.
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`The Diocese asserts that its safety protocols have been successful, and the
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`State’s witness in the evidentiary hearing below acknowledged that he was
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`unaware of any COVID-19 outbreaks associated with churches in the Diocese.
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`2.
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`Agudath Israel
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`Agudath Israel of America is a national organization advocating for the
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`Orthodox Jewish community in the United States. There are approximately 70
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`synagogues affiliated with Agudath Israel of America in New York, including
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`three of the appellants here.15
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`Like the Diocese, Agudath Israel has voluntarily instituted safety measures
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`to protect congregants and the local community. Agudath Israel synagogues
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`suspended services in March and did not re-open until late May or early June.
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`Some have shortened the length of services, and others have split services into
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`multiple separate gatherings to decrease the number of congregants present at one
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`time; all have implemented mask requirements and other safety protocols in
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`compliance with State guidance. The Governor does not dispute that there have
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`been no COVID-19 outbreaks in synagogues associated with Agudath Israel.
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`15 The individual appellants in No. 25-3572 are rabbis and an official of these affiliated
`synagogues. For simplicity, we refer to the appellants associated with Agudath Israel of America
`collectively as “Agudath Israel.”
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`D.
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`Procedural History
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`1.
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`District Court
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`After the Governor issued the Order, the Diocese and Agudath Israel each
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`filed suit in the Eastern District of New York. The Diocese sought to enjoin
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`enforcement of only the Order’s 10- and 25-person fixed capacity limits (the “fixed
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`capacity limits”), while Agudath Israel sought an injunction against enforcement
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`of both the fixed capacity limits and the 25% and 33% capacity limits (the
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`“percentage capacity limits”).
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`The district court denied the Diocese’s motion for a preliminary injunction
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`after an evidentiary hearing. See Roman Cath. Diocese of Brooklyn v. Cuomo,
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`No. 20-cv-4844, 2020 WL 6120167, at *1 & n.1 (E.D.N.Y. Oct. 16, 2020). The district
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`court acknowledged that the Diocese had adequately alleged irreparable harm
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`based on the Order’s “infringe[ment] on its religious practice.” Id. at *5. But the
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`court applied rational-basis review, rather than strict scrutiny, and denied the
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`motion. The district court relied on the Chief Justice’s concurring opinion in South
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`Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), and various
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`decisions applying that opinion. Roman Cath. Diocese, 2020 WL 6120167, at *9–10.
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`Agudath Israel likewise sought, and was denied, a temporary restraining
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`order and preliminary injunction from the district court. In an oral ruling, the
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`court held that Agudath Israel had failed to show irreparable harm, reasoning that
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`its congregants “can continue to observe their religion but there will have to be
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`modifications.” Tr. of Proceedings at 66, No. 20-cv-4834 (E.D.N.Y. Oct. 9, 2020).
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`The district court also concluded that rational-basis review applied, that Agudath
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`Israel was unlikely to succeed on the merits, and that the remaining injunction
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`factor weighed in favor of the Governor’s position.
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`2.
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`Second Circuit
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`The Diocese and Agudath Israel appealed the district courts’ denials of
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`preliminary injunctions. They also each filed emergency motions for injunctions
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`pending appeal in this Court. In an order dated November 9, 2020, a divided panel
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`denied injunctive relief pending appeal, but set an expedited schedule for
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`resolution of the appeals. See Agudath Israel of Am. v. Cuomo, 980 F.3d 222, 228
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`(2d Cir. 2020). The panel majority, relying on the Chief Justice’s South Bay
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`concurrence, agreed with the district courts that rational-basis review applied
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`because the Order “subjects religious services to restrictions that are similar to or,
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`indeed, less severe than those imposed on comparable secular gatherings.” Id. at
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`226. Under that standard, the panel majority reasoned, the Order was likely to
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`pass constitutional muster. Id. at 227.
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`The dissenting member of the panel would have granted the injunctions
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`pending appeal based on the view that the Order should be subject to strict
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`scrutiny because it “singl[es] out ‘houses of worship’ for unfavorable treatment.”
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`Id. at 228 (Park, J., dissenting). In particular, the dissent noted, the Order places
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`no additional restrictions on secular businesses deemed “essential” while
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`imposing stringent capacity limits on “houses of worship.” Id. at 229–30.
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`3.
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`Supreme Court
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`After the denials of injunctive relief pending appeal, and while the
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`underlying appeals of the preliminary injunction denials remained pending in this
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`Court, the Diocese and Agudath Israel each applied for a writ of injunction in the
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`Supreme Court. They sought injunctions against enforcement of the Order’s fixed
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`capacity limits.
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`The Supreme Court granted injunctive relief for both applicants. See Roman
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`Cath. Diocese, 141 S. Ct. 63; Agudath Israel v. Cuomo, No. 20A90, 2020 WL 6954120
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`(U.S. Nov. 25, 2020). Specifically, the Court “enjoined [the Governor] from
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`enforcing Executive Order 202.68’s 10- and 25-person occupancy limits” on the
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`applicants “pending disposition of the appeal in the United States Court of
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`Appeals for the Second Circuit and disposition of the petition for a writ of
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`certiorari, if such writ is timely sought.” Roman Cath. Diocese, 141 S. Ct. at 65;
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`Agudath Israel, 2020 WL 6954120, at *1.
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`In a per curiam opinion, the Court held that the applicants satisfied the
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`injunction factors and “clearly established their entitlement to relief pending
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`appellate review.” Roman Cath. Diocese, 141 S. Ct. at 66. First, the Court found that
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`the applicants “made a strong showing that the challenged restrictions violate the
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`minimum requirement of neutrality to religion” because the restrictions “single
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`out houses of worship for especially harsh treatment.” Id. (cleaned up). And
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`“[b]ecause the challenged restrictions are not neutral and of general applicability,”
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`the Court held, “they must satisfy strict scrutiny.” Id. at 67 (internal quotation
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`marks omitted). The Order likely failed that standard, however, because “it is
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`hard to see how the challenged regulations can be regarded as ‘narrowly
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`tailored.’” Id. In particular, the Court found that the fixed capacity limits are “far
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`more severe than has been shown to be required to prevent the spread of the virus
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`at the applicants’ services” and that “there are many other less restrictive rules that
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`could be adopted to minimize the risk to those attending religious services.” Id.
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`The Court further held that “[t]here can be no question that the challenged
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`restrictions, if enforced, will cause irreparable harm.” Id. It also found that the
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`Governor had not “shown that granting the applications will harm the public,”
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`because the Governor “has not claimed that attendance at the applicants’ services
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`has resulted in the spread of disease” and “has not shown that public health would
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`be imperiled if less restrictive measures were imposed.” Id. at 68.
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`II. DISCUSSION
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`Appellants seek preliminary injunctions against enforcement of Executive
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`Order 202.68’s fixed capacity limits, which restrict occupancy in “houses of
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`worship” to 10 people in red zones and 25 people in orange zones. Agudath Israel
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`also seeks to enjoin the Order’s percentage capacity limits of 25% of maximum
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`occupancy in red zones and 33% in orange zones.
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`In light of the Supreme Court’s Roman Catholic Diocese decision, the
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`Governor has “withdraw[n] his objection to the entry of a preliminary injunction”
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`as to the fixed capacity limits. Appellee’s Br., No. 20-3572, at 30. He continues to
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`maintain, however, that those limits “do not violate the Free Exercise Clause.” Id.
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`And he defends the percentage capacity limits as constitutionally permissible,
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`arguing that they do not burden Agudath Israel’s religious exercise and that they
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`may survive strict scrutiny.16
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`A.
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`Legal Standard
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`When “a preliminary injunction will affect government action taken in the
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`public interest pursuant to a statute or regulatory scheme, the moving party must
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`demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of
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`success on the merits, and (3) public interest weighing in favor of granting the
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`injunction.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d
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`133, 143 (2d Cir. 2016) (internal quotation marks omitted). We review a district
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`court’s denial of a preliminary injunction for abuse of discretion, but “must assess
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`de novo whether the court proceeded on the basis of an erroneous view of the
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`applicable law.” Id. (internal quotation marks omitted).
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`16 The Governor also argued before the Supreme Court that this case was moot due to his
`modification of zone boundaries to remove the applicants’ churches and synagogues from red
`and orange zones. The Court squarely rejected that argument, as do we. See Roman Cath. Diocese,
`141 S. Ct. at 68 (“It is clear that this matter is not moot . . . [and that] injunctive relief is still called
`for because the applicants remain under a constant threat that the area in question will be
`reclassified as red or orange.” (citation omitted)). Notwithstanding the Supreme Court’s
`November 25 decision, the Governor proceeded to renew the Order on December 2, including
`the challenged fixed capacity limits on houses of worship.
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`B.
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`Likelihood of Success on the Merits
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`1.
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`Strict Scrutiny
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`The First Amendment provides that the government “shall make no law
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`respecting an establishment of religion, or prohibiting the free exercise thereof.”
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`U.S. Const. amend. I; see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)
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`(incorporating the Free Exercise Clause against the states). It is well established
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`that discrimination against religion is “odious to our Constitution.” Trinity
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`Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017).
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`The Free Exercise Clause protects both an individual’s private right to
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`religious belief and “the performance of (or abstention from) physical acts that
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`constitute the free exercise of religion,” including “‘assembling with others for a
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`worship service.’” Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep’t of Health &
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`Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (quoting Emp. Div., Dep’t of Hum.
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`Res. of Or. v. Smith, 494 U.S. 872, 877 (1990)). This protection “does not relieve an
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`individual of the obligation to comply with a valid and neutral law of general
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`applicability,” Smith, 494 U.S. at 879 (internal quotation marks omitted), and such
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`a neutral and generally applicable policy is subject to only rational-basis review,
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`Cent. Rabbinical Cong., 763 F.3d at 193. Official action “burdening religious conduct
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`that is not both neutral and generally applicable, however, is subject to strict
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`scrutiny.” Id.
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`“To determine neutrality, we begin with the [Order’s] text, ‘for the
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`minimum requirement of neutrality is that a [government policy] not discriminate
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`on its face.’” Id. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
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`U.S. 520, 533 (1993)). The Order fails this basic standard by explicitly imposing on
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`“houses of worship” restrictions inapplicable to secular activities. “In a red zone,
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`while a synagogue or church may not admit more than 10 persons, businesses
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`categorized as ‘essential’ may admit as many people as they wish,” subject to only
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`the less stringent 50% capacity limit applicable to all businesses. Roman Cath.
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`Diocese, 141 S. Ct. at 66. And “[t]he disparate treatment is even more striking” in
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`orange zones, where “attendance at houses of worship is limited to 25 persons”
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`but most non-essential businesses must comply with only the generally applicable
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`50% capacity limit. Id. The fixed capacity limits thus “cannot be viewed as neutral
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`because they single out houses of worship for especially harsh treatment.” Id.
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`The Governor acknowledges that “the Supreme Court has seemingly
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`rejected the Governor’s explanation” of why the Order’s fixed capacity limits are
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`constitutional. Appellee’s Br., No. 20-3572, at 33. He nevertheless continues to
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`argue that rational-basis review applies because those limits “do not disfavor
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`religious gatherings in houses of worship as compared with all secular activities
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`that present a similar or greater degree of risk of COVID-19 spread,” like “concerts
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