Case 6:22-cv-06486-JLS Document 56 Filed 12/29/22 Page 17 of 36
parks, homeless shelters, public transit, polling places, and theatres.” Dkt. 43, at 11. This argument fails. The Supreme Court instructs that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.” Tandon, 141 S.Ct. at 1296 (emphasis in original). It is “no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.” Id.
Whether “two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue.” Id. The State asserts that it has a “purpose of the highest order in the protection of its citizens from gun violence.” Dkt. 43, at 12n.5. it explains that the statute prohibits carrying of firearms in locations that create “risks for gun violence” because they are “often busy, crowded, and dense locations where individuals are often seated or moving slowly.” Id. at 11.
But other private property owners—such as proprietors of hair salons, retail stores, shopping malls, gas stations, office buildings, garages, and countless other private actors hosting secular activities—may decide for themselves whether to permit the carrying of firearms on their property. See N.Y. Pen. L. § 265.01-d(1) (prohibiting carry of firearm on private property only where property owner has not expressly permitted it). See also Roman Cath. Diocese of Brooklyn v. Cuomo, 141
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