Decry exemption for religious services held in the same spaces Disparity violates First Amendment, complaint says Sept 17 - A group of small-venue theater and comedy club operators in Manhattan have sued to block enforcement of Mayor Bill de Blasio’s week-old “Key to NYC” proof-of-vaccination order, claiming it unfairly and arbitrarily discriminates against them based on the content of speech and the type of the speaker. The complaint, filed in federal court in Manhattan by lawyers at the Pacific Legal Foundation and Long Island-based Mermigis Law Group, primarily focuses on the order’s exemptions for religious services at any venue – including small theaters, which are frequently rented out for that purpose -- and for performances held at community centers and schools. “Religious speech is treated more favorably than live theater or comedy,” which are also constitutionally protected speech, Daniel Ortner of the Pacific Legal Foundation said in an email on Friday. “A theatrical production put on by a community center or high school drama department is treated more favorably than a production put on by one of our clients. This violates the First Amendment.” The plaintiffs also claim the order violates their constitutional right to Equal Protection, increases their expenses, decreases their revenue and creates inefficiencies. “Several staff members have quit after being screamed at, physically threatened, or even spat on by customers upset about Plaintiffs’ enforcement” of the order, the complaint alleges. The suit seeks an injunctive relief, $1 in damages and attorney’s fees. De Blasio announced Key to NYC in August, in light of the resurgence of the COVID-19 virus, the emergence of delta and later variants, and evidence that “over 98% of hospitalizations and deaths from COVID-19 infection (between Jan. 1 and June 15) involved those who were not fully vaccinated.” The order requires “covered entities” – including indoor entertainment, recreation, dining, and fitness establishments – to allow entry only by employees and customers (if they are 12 or older) who can furnish proof of receiving at least one dose of vaccine. The enforcement section of the order, under which violators can be fined $1,000 to $5,000, took effect on Sept. 13. “Vaccination unlocks everything New York City has to offer to help us recover from this pandemic, and we will continue to vigorously defend the Key to NYC Order,” the New York City Law Department said in an emailed statement on Friday. The city issued the same statement on Sept. 10, after a state-court judge dismissed a challenge to Key to NYC by IROAR, a consortium of Staten Island and Brooklyn restaurants. The plaintiffs in the federal suit filed Thursday are The Theater Center, which operates the Jerry Orbach Theater and The Anne L. Bernstein Theater at the same location; The Players Theatre; the Actors Temple Theatre; the Soho Playhouse; and the Broadway Comedy Club. The Actors Temple “also operates as a nondenominational Jewish synagogue,” and a religious group rents the Orbach Theater for Sunday morning services, the complaint alleges. At the Sunday morning services, “proof of vaccination is not required, there is congregational singing, and masks are not strictly required,” Ortner said on Friday; but “at a matinee a few hours later, the theater would be required to turn away anyone who cannot prove that they are vaccinated, even though there is no singing and masks are strictly required for all customers.” The case is The Clementine Co. d/b/a The Theater Center et al. v. Bill de Blasio, in his official capacity as the Mayor of New York City, U.S. District Court for the Southern District of New York No. 21-7779. For the Theater Center et al.: James Mermigis of the Mermigis Law Group; Daniel Ortner and Glenn Roper of Pacific Legal Foundation