The Volokh Conspiracy
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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.