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UNITED STATES DISTRICT COURT  NORTHERN DISTRICT OF NEW YORK  __________________________________________ ASS’N OF JEWISH CAMP OPERATORS; SAMUEL WERZBERGER; ARIELA ORKABY; BETH STATFIELD; and GAIL ZAHTZ, Plaintiffs, v. 1:20-CV-0687 (GTS/DJS) ANDREW M. CUOMO, Governor of the State of  New York, in his official capacity, Defendant.  __________________________________________ APPEARANCES: OF COUNSEL: TROUTMAN PEPPER BENNET J. MOSKOWITZ, ESQ. Counsel for Plaintiffs AVI SCHICK, ESQ. 875 Third Avenue WILLIAM ALEXANDER SMITH, ESQ.  New York, NY 10022 HON. LETITIA A. JAMES CHRISTOPHER LIBERATI-CONANT, ESQ. Attorney General for New York Assistant Attorney General Counsel for Defendants The Capitol Albany, NY 12224 GLENN T. SUDDABY, Chief United States District Judge

DECISION and ORDER

Currently before the Court, in this civil rights action filed by the Association of Jewish Camp Operators, Samuel Werzberger, Ariela Orkaby, Beth Statfield, and Gail Zahtz (“Parent-Plaintiffs”) (collectively “Plaintiffs”) against Andrew M. Cuomo (in his capacity as Governor of the State of New York) (“Defendant”), is Plaintiffs’ motion for a preliminary injunction enjoining Defendant from prohibiting the operation of overnight children’s camps anywhere in  New York State for the summer of 2020, pursuant to Fed. R. Civ. P. 65(b). (Dkt. No. 7, Attach.

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2 [Pls.’ Mem. of Law].)

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 Defendant opposed Plaintiffs’ motion. (Dkt. No. 17.) For the reasons set forth below, Plaintiffs’ motion for a preliminary injunction is denied.

I. RELEVANT BACKGROUND

 

A. Plaintiffs’ Claims

 Generally, liberally construed, Plaintiffs’ Complaint asserts the following four claims: (1) a claim that Defendant violated the Free Exercise Clause of the First Amendment pursuant to 42 U.S.C. § 1983, by discriminatorily banning children’s Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to curbing the transmission of the COVID-19 virus;

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 (2) a claim that Defendant violated the Due Process Clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, by infringing on parents’ fundamental right to control the upbringing and education of their children through banning children’s Jewish overnight camps without a reasonable relationship between the ban and the curbing of the spread of the COVID-19 virus; (3) a claim that Defendant violated the First and Fourteenth Amendments  pursuant to 42 U.S.C. § 1983 by discriminatorily banning Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to sufficient state interest; and (4) a claim that Defendant violated Article One, Section Three of the New York

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Plaintiffs’ initially filed a motion for a temporary restraining order, but at the beginning of the motion hearing on June 30, 2020, the Court proposed allowing the parties to supplement the record and argument to address the application for preliminary injunctive relief without requiring an additional evidentiary hearing. (Hearing Transcript.) The parties agreed to the Court’s proposed course of action, obviating the need for the Court to consider Plaintiffs’ motion for a temporary restraining order.

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Although Defendant’s decision to prohibit overnight children’s camps applies to all overnight children’s camps (

Dkt. No. 1 at ⁋ 

 52), Plaintiffs argue that Defendant’s decision essentially affects only Jewish overnight camps because the decision was not announced until after almost all of the non-Jewish overnight camps in New York State had decided to close during the summer of 2020. (Dkt. No. 7, Attach. 2 at 11.)

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State Constitution because any interest advanced by Defendant in closing overnight children’s camps to purportedly curb the transmission of COVID-19 is outweighed by the substantial  burden imposed on the right to free exercise of religion. (

See generally

 Dkt. No. 1.) Familiarity with the factual allegations supporting these claims in Plaintiffs’ Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. (

 Id 

.)

B. Plaintiffs’ Motion

 

1. Plaintiffs’ Memorandum of Law

 Generally, in support of their motion for a preliminary injunction, Plaintiffs assert the following three arguments: (1) Plaintiffs have shown that they are likely to succeed on the merits of their claims because (a) Defendant’s executive order 

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 violates the Free Exercise Clause of the First Amendment, (b) Defendant’s executive order infringes on the Parent-Plaintiffs’ fundamental right to control the education and upbringing of their children under the substantive Due Process Clause of the Fourteenth Amendment, and (c) Defendant’s executive order violates the Parent-Plaintiffs’ hybrid right to direct the religious education of their children; (2) Plaintiffs have demonstrated irreparable harm based on the threatened loss of First Amendment freedoms; (3) the balance of hardships tips in Plaintiffs’ favor because (a) the overnight camps are uniquely  positioned to protect against the transmission of COVID-19, (b) the overnight camps’ have implemented aggressive screening and prevention measures, (c) children are much less susceptible to COVID-19 than adults, (d) there is “low prevalence” of COVID-19 throughout

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Plaintiffs argue that the general closures implemented by Executive Orders 202.8 and 202.10 are the basis for their claims because overnight children’s camps were closed as a result of those executive orders rather than as a result of any clarifying statements made by Defendant or his representatives on June 12, 2020. (Hearing Transcript.) For purposes of brevity and convenience, the Court will refer to Defendant’s statewide closure order as an “executive order” throughout the remainder of this Decision and Order.

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