Limiting Weddings at Restaurants, While Allowing Ordinary Dining at Restaurants, Violates Equal Protection

"the activities that will be engaged in during a wedding will be much the same as those engaged in while dining at a restaurant, including having groups of individuals of no more than ten in number at tables seated for dining."

|The Volokh Conspiracy |

From DiMartile v. Cuomo, decided yesterday by Judge Glenn T. Suddaby (N.D.N.Y.):

… Plaintiffs' Complaint asserts the following five claims:

(1) a claim that Defendants' 50-person gathering restriction violates Plaintiffs' First and Fourteenth Amendment rights of free exercise of religion by "forbidding them to preside over or participate in religious weddings according to the dictates of their conscious and religious beliefs";

(2) a claim that the 50-person gathering restriction violates their First and Fourteenth Amendment rights of freedom of speech, assembly, expression and intimate association by forbidding them to gather with their invited guests for a religious purpose;

(3) a claim that the 50-person gathering restriction violates their Fourteenth Amendment rights of equal protection and substantive due process in that it treats religious conduct (i.e., weddings) differently than non-religious conduct (including gatherings for mass demonstrations, graduation ceremonies, special education classes, and restaurant patronage);

(4) a claim that Defendants have acted ultra vires in enacting the many restrictions related to COVID-19 pursuant to the Governor's emergency power, including the 50-person gathering restriction; and

(5) a claim that Plaintiffs are entitled to relief pursuant to N.Y. C.P.L.R. Article 78 because Defendants' actions are arbitrary, capricious, an abuse of discretion, and a violation of lawful procedure….

Because the Court finds Plaintiff's equal protection claim to be the strongest of the five they assert, the Court will focus its analysis on that claim.

The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." "[T]he equal protection guarantee … extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials." …

To succeed under a selective enforcement theory, a plaintiff must establish that (1) he, "compared with others similarly situated, was selectively treated," and (2) "the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, … to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person." A plaintiff must identify comparators that "'a reasonably prudent person would think were roughly equivalent'" to the plaintiff, though the plaintiff does not need to show an "exact correlation" between them and that similarly situated person.

To succeed under a class-of-one theory, a plaintiff must establish that he was "intentionally treated differently from others similarly situated and 'there is no rational basis for the difference in treatment.'"

As to the existence of a similarly situated comparator, Plaintiffs point to the fact that each venue at which they are scheduled to have their weddings also operates as a restaurant. As asserted in Plaintiffs' Verified Complaint, and as argued in their papers and at the hearing, the activities that will be engaged in during a wedding will be much the same as those engaged in while dining at a restaurant, including having groups of individuals of no more than ten in number at tables seated for dining.

Additionally, as Plaintiffs' counsel argued at the hearing (and as discussed in the submitted declaration from the venue's owner), patrons shall be required to follow all of the State's social-distancing, mask-wearing, and other health and safety guidelines and directives when on the premises, including when participating in the wedding ceremony: the venue's owner has sworn that all of their safety policies will be in place and be enforced during Plaintiffs' weddings. Thus, the record evidence before the Court establishes that there is no real material difference between the activities or the safety risk in the venues at a wedding that is compliant with the State's guidelines and during normal dining operations.

However, despite this high degree of similarity between the two uses of the same venues, ordinary dining and weddings are treated differently by Defendants. Ordinary dining use is permitted to involve a number of patrons (at any one time) equal to up to 50 percent of the venue's maximum occupancy, while wedding use is subject to the general 50-person gathering restriction.

Based on the evidence provided in this case, the Court can find no rational basis for this State's difference in treatment between use of the venues in question for ordinary dining and use of those venues for weddings. In particular, there is no discernable rational reason for limiting a wedding use of the venues to only 50 individuals when the individuals present at the wedding would be required to abide by the same safety rules applicable to ordinary diners, such as limiting the number of people at each table, requiring people to stay at their tables (when not visiting the rest room or bar), requiring people to wear masks when not at their table, and prohibiting dancing, among other things.

Simply put, if these limitations are sufficient to protect the State's interest in preventing the spread of COVID-19 when implemented in restaurants at 50-percent capacity, there is no rational reason why they are not also sufficient to protect that interest in a wedding at 50-percent capacity. The Court is not persuaded by the State Defendants' argument that the fact that part of the purpose of a wedding is for the married couple to interact with friends and family is sufficient to justify finding that weddings are practically dissimilar from ordinary dining and thus do not merit to be treated the same as an ordinary dining use of the venue.

Nor is the Court persuaded that Plaintiffs are required to somehow prove that they will comply with all of the required measures in order to show entitlement to relief, given that the myriad of other non-essential businesses or uses that have been allowed to operate under the current reopening plans are not routinely required to show such compliance before being allowed to proceed with their operations. Plaintiffs and the venues' owner have made assurances that they are willing to comply with all the same requirements that the State has deemed to be sufficient to mitigate the risk of operating a restaurant for dining purposes at a 50-percent occupancy capacity, and there is nothing stopping Defendants from taking measures to ensure that they do in fact comply with those requirements or to take enforcement measures against them if they fail to do so.

Additionally, the Court notes that Defendants have granted other exceptions to the general 50-person gathering restriction, the most notable of which is for 150-person outdoor graduation ceremonies. Although not quite as similar to an indoor wedding as is the dining activity mentioned above, graduation ceremonies also involve significant interaction between people and families as they come together to celebrate with one another; and yet the State has allowed gatherings of three times the limit applicable to all other gatherings. Although this exception may not be similar enough to satisfy the stringent standard applicable to a class-of-one claim, it is certainly additional support for the Court's conclusion that the State Defendants have failed to treat similar conduct in a similar manner.

The Court cautions that it is not implying that any wedding (particularly the typical wedding that existed before the COVID-19 pandemic) would be sufficiently similar to a typical dining experience, and is certainly not implying that these weddings should be permitted to proceed in any manner in which they like. In fact, this case presents a unique situation in that the Plaintiffs' chosen venues are already operating as functioning restaurants in addition to wedding venues and thus the unequal treatment is happening as a result of two different uses of the same venue.

Rather, the Court is finding that a wedding that follows all the same rules that would be applicable to the given venue for dining when that venue is operating as a restaurant should not be treated differently than a restaurant. Nothing in this Decision and Order is intended to supersede the State's authority to enforce those normal safety requirements and precautions that are applicable to restaurants against Plaintiffs' weddings. The purpose and the effect of this Decision and Order is to place Plaintiffs' weddings on an equal footing with such restaurant operations, because that is what the Equal Protection Clause guarantees….

I'm skeptical about the court's analysis: The "rational basis" test that the court is applying here can be satisfied whenever there's some rational relationship between the classification and a legitimate purpose; and here it seems rational to conclude that wedding guests will mix with guests from other tables much more than ordinary restaurant diners would. As to graduations, I think outdoor graduation ceremonies can quite reasonably be treated differently from indoor weddings. But the court obviously didn't take my view, and I thought it worth noting.

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  1. So, part of the problem here is, instead of regulating an action or actions, you’re characterizing what you believe a wedding (reception) does, and using that characterization as a basis for banning the wedding.

    The issue with that characterization, is that not all weddings are the same.

    If this particular wedding says that they will all wear masks, seat no more than 10 to a table, and ban dancing, and those are the rules that are acceptable for a dining establishment, then there is no functional difference between the two.

    If you believe, for example, there should be an additional regulation in dining establishments that bans patrons from visiting more than 1 other table at the dining establishment during their stay, then that would be a potentially allowable regulation. But what is problematic is allowing such a visitation for normal dining, but banning it for weddings. Likewise, simply assuming a wedding will do this, and using it as a basis to ban the wedding should not be allowed.

    It is a characterization of a religious/social event, and using the characterization to ban it, especially in the absence of laws that prevent such action in a secular environment. And that is problematic.

    For those who believe a wedding will just “break the rules” so should be banned a priori, again you cannot ban a religious action because you think it will, in the future, break the rules. That’s very problematic.

    1. All policies are going to require some coarse-graining. You can’t have a bespoke policy for every event.

      Trying to make it about conduct not events makes enforcement impossible.

      Trying to make this about some targeting of religion is pretty silly; there is zero evidence of that, and weddings are oftentimes quite secular.

      1. Conduct is enforced all the time, when it is desired to be enforced.

        When the law relies on “characterizations” of events, peoples, religions, etc, it gets in severe trouble.

        1. Conduct is enforced all the time, but it is generally impossible to enforce conduct 100%. If 100% enforcement your goal, you want to apply your policies to activities, not conduct; that’s much easier to enforce to a high level of compliance.
          That is the policy tradeoff one must consider.
          Given that 100% compliance seems to be the goal here, I don’t believe it’s a legitimate criticism that they didn’t tailor this to conduct.

          Plenty of laws and rules rely on characterization of events or people. No transgenders in the military. No trucks on this road. You must be this tall to ride.

          1. Your examples are false.

            The “restrictions” in terms of trucks refer to weight, how trucks are defined and the weight limits certain roads have. It’s akin to having limits on the number of people at a gathering.

            Height limits on rides, likewise, refer to a numerical value, devoted around safety.

            A global “characterization” would be something like “No children on this ride” on the assumption that children are all too short. But some aren’t.

            1. No, AL, the restrictions refer to trucks. That’s what the signs say. And that’s my point – they don’t refer to weight because that would make enforcement impossible.

              Height limits on riders are a class-based restriction, ignoring whether a specific individual would not be suitable for a ride. Which is what you want.

              I see you ignored my gay/trans example.

          2. You may not ‘trade off’ our free exercise liberty, Sarcastr0. We are well past the point where deference is due because of ‘pandemic emergency’. The emergency is over.

            1. The emergency is over. The Plandemic continues apace. Thank you XY.

              1. Your crazy failure to face reality is not helping your fellows here.

                1. Actually your crazy failure to face reality is not helping yourself.

                  1. You in the Plandemic crowd as well?

            2. I understand you want Smith to be overruled, but it hasn’t been.

              This is not a free exercise issue. Unless you believe pandemic-related regulations are all free exercise issues, in which case I believe you fundamentally misapprehend the purpose of government.

              1. No, you are.

                Government is to protect rights and life. They are not doing either with the regulations.

                1. How does this not protect life?

                  1. It is a failure to protect liberty, Sarcastr0. The function of government is to protect life, liberty and property. Our liberties must be protected and that also must mean equal treatment under the same law.

                    1. PH2 seems to argue this reg protects *neither* liberty *nor* life, which seems to me hard to support.

                      All COVID-based restrictions are going to effect liberty. A bare invocation of liberty is not a sufficient argument. It’s going to be the usual nuanced dance between judicial minimalism and rational policymaking.

                      I’m not sure if this is rational policymaking – give the studies I see, leaving anything closed while you open up in-person dining requires some ‘splaining. But I was replying specifically to an argument AL made that I thought was a bad one to use against this policy.

          3. If 100% compliance was their goal they wouldn’t be setting limits like 50 participants or 50% occupancy. No, they’re doing some balancing of compliance versus opening up, and picking and choosing what’s more important to open up and in their judgment worth the risk.

            Which is normally fine, until it comes to things like religion and speech, then their discretion is constrained. There isn’t an explicit free-standing “right to weddings” written in the BoR so it’s a little more borderline, but there are enough SC cases on marriage that one might guess weddings aren’t completely unprotected.

            1. ducksalad – my point is that a limit like what you are talking about would be impossible to enforce, whereas a limit based on type of event is easier to enforce.

              I don’t buy that weddings are inherently religious.

              1. I agree that weddings aren’t inherently religious. I was thinking that protection for weddings would come from the same reasoning that says governments can’t place arbitrary regulations on marriage and sexual intercourse.

                1. I believe that is indeed the law – the case above was analyzed under rational basis.

                  I disagree with how the court came out in that I don’t think this is arbitrary, but I (and you) appear to agree with the rubric used.

                  I was making a point about policymaking contra AL’s argument that you should require individualized analysis or else your policy is overbroad. I’m a bit of a policy analysis dork.

              2. ducksalad – my point is that a limit like what you are talking about would be impossible to enforce, whereas a limit based on type of event is easier to enforce.

                I don’t see why rules based on the type of venue are so much harder to enforce than rules based on the type of event.

                Setting aside whether these rules are really enforced at all barring a business going on social media and and yelling about how it’s going to flout these Fascist Rules Designed to Bring About Bill Gates’ Hegemony, the inspector goes in (or peers through the window). He looks at how people are behaving. He doesn’t need to ask whether it’s a wedding party or just dinner; he just needs to see whether the venue is at appropriate capacity and whether the customers are socially distancing.

                1. Type of venue could indeed work – AL was arguing the regulation must be tailored to behavior.

                  I learned in my program management class that spot inspection regimes are fine if you just want general compliance, but not if you want high levels of compliance.

          4. I can’t think of a law where the ideal enforcement level is 100%.

            1. Fair enough – the point is you want higher levels of compliance than a conduct-based random inspection regime will allow.

      2. No you make it very generalize and just deal with it. Governments are picking and choosing, and that violates equal protection.

    2. Exactly. They are picking and choosing according to their own biases.

      The court got it exactly right. There is no rational basis to pick and choose.

  2. Isn’t it in the Constitution that any entity who would have a wedding in which participants must wear masks and stand six feet from one another isn’t a born or naturalized Citizen, but an alien, whatever the religion?

  3. As asserted in Plaintiffs’ Verified Complaint, and as argued in their papers and at the hearing, the activities that will be engaged in during a wedding will be much the same as those engaged in while dining at a restaurant, including having groups of individuals of no more than ten in number at tables seated for dining.

    Mathematically, a gathering of 10 people has a finite number of ways to interact. A gathering of 50 people also has a finite number of potential interactions, but the number is exponentially greater. A gathering of 10 people at a restaurant will usually not interact much with people outside that group. Did anyone ever attend a wedding where frequent table-to-table interaction among the guests, and between the guests and the wedding party, was not only encouraged, but also widely practiced? They are not the same kind of gathering—wedding interactions among larger groups have far more potential to spread contagion than dining interactions among smaller groups.

    1. I’d be more inclined let you get away with “exponentially” if you hadn’t prefaced it with “mathematically”.

  4. Can we have a divorce trial at a restaurant too?

  5. “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

    — Justice Brandeis, _Olmstead v. NY_ (1928)

    1. “The robber barons cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”

      – C.S. Lewis

  6. So 50 people outside a restaurant conspire to break up into groups of 10 and act like they don’t know each other…

    Apparently it’s like that rule where you have to report cash transactions over $10,000. You’re still busted if you do less than $10,000 in cash if your intent was to not report.

    1. “Structuring” – technically complying with the law is a crime. Not complying with the law is also a crime. Now they’ve got you.

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