Case 6:22-cv-06486-JLS Document 56 Filed 12/29/22 Page 15 of 36
- b. The Houses of Worship Exclusion Is Not “Neutral” or “Generally Applicable”
The place of worship exclusion is neither neutral nor generally applicable and, therefore, must satisfy strict scrutiny. See Kennedy, 142 S.Ct. at 2422 (“Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny”).
A law is not neutral “if the object of [the] law is to infringe upon or restrict practices because of their religious motivation.” Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 533. To determine the object of a law, the court “must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face.” Id. Here, the houses of worship exclusion is not facially neutral. Under its plain text, it restricts concealed carry in “any place of worship or religious observation.” N.Y. Pen. L. § 265.01-e(2)(c). There is no “secular meaning discernable from the language or context.” Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 533. The law therefore “lacks facial neutrality.” Id.
Even if the place of worship exclusion did not discriminate on its face, the Court’s inquiry would not “end with the text of the law[] at issue.” Id. at 534. Facial neutrality “is not determinative.” Id. The Free Exercise Clause “protects against governmental hostility which is masked, as well as overt.” Id. Thus, the Court “must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders” (iternal citation omitted). Here, the place of worship exclusion is directed at religious activity. Careful drafting ensured that carrying of concealed weapons for religious reasons at place of worship is
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