The Clementine Company LLC. v. Cuomo

Background

Eight individually owned small-venue theaters in Manhattan sued Andrew M. Cuomo, in his official capacity as New York’s governor; the New York attorney general; Bill de Blasio, in his official capacity as New York City’s mayor; and the State of New York. The plaintiffs sought temporary and permanent court orders preventing enforcement of Executive Order 202.3 against their theaters. That order required New York theaters and other enterprises to stop operating indefinitely to reduce COVID-19 transmission.

The theaters had a median capacity of 144 seats, according to the opinion. They alleged that their equal-protection rights were violated because theaters had to remain closed while restaurants, catering halls, gyms, casinos, and shopping malls could open subject to capacity limits and social-distancing requirements. Although the complaint also raised due-process claims, the motion for a preliminary injunction relied only on the equal-protection claim.

Arguments and legal context

The plaintiffs filed their motion before the Supreme Court issued an injunction while an appeal was pending in a case involving attendance restrictions on houses of worship in COVID-19 outbreak areas. In that case, the Supreme Court temporarily blocked enforcement of a related executive order against religious institutions. The majority reasoned that the challengers had made a strong showing that the restrictions were not sufficiently neutral toward religion and likely violated the First Amendment’s protection for religious exercise.

The plaintiffs argued that the Supreme Court’s action undermined the defendants’ reliance on decisions recognizing substantial government authority during public-health emergencies. The court noted that the plaintiffs raised this argument only briefly in their reply and that the Supreme Court’s opinions distinguished the earlier cases.

The court also explained that public artistic performances can involve First Amendment expression. It recognized the government’s concern that performances may increase COVID-19 transmission, while noting that the theaters said they had developed safety measures, including social distancing and masking protocols. The court stated that the comparison between religious events and secular artistic events raised important questions because both can implicate First Amendment rights.

Court’s action

The court did not grant or deny the preliminary-injunction motion. Instead, it concluded that the parties needed a full opportunity to address whether the Supreme Court’s decision had implications for the theaters’ request and whether the procedural posture of that Supreme Court matter affected the analysis.

Chief Judge Colleen McMahon allowed the attorney general and the city’s corporation counsel until December 22, 2020, to brief the Supreme Court decision’s implications. The plaintiffs could file an additional reply limited to that issue by January 8, 2021. The court also invited potential amici curiae—nonparties offering information or arguments relevant to the court—to seek permission to file briefs by January 8, 2021. The court said it would consider the matter promptly in the new year.