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February 13, 1997

COMMACK SELF-SERVICE KOSHER MEATS INC. d/b/a COMMACK KOSHER, EVELYN YARMEISCH, BRIAN YARMEISCH and JEFFREY YARMEISCH, Plaintiff, against THE STATE OF NEW YORK, and "JOHN DOES" and "JANE DOES" NUMBERS "1" THROUGH "5"; the names "JOHN DOE" and/or "JANE DOE" being fictitious as the names of said defendants are presently unknown to the plaintiffs, Defendant.

The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 Defendant Commack Self-Service Kosher Meats Inc. ("Commack") and its principals, Evelyn Yarmeisch, Brian Yarmeisch and Jeffrey Yarmeisch, market kosher meats and foodstuffs which are subject to the provisions of the Agriculture and Markets Law § 201-a et seq. Plaintiffs allege that they have been cited for violations of that law and challenge it constitutionality. They assert claims under (1) 42 U.S.C. § 1983 for violation of the First Amendment's Establishment Clause and the Fourteenth Amendment's Equal Protection Clause and (2) the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. 2000bb et seq., for violation of the First Amendment's Free Exercise Clause. Plaintiffs also assert claims for violations of the New York Civil Rights Law § 40-c and of the New York State Constitution, Article 1, § 11. The complaint seeks a declaratory judgment that plaintiffs' rights have been violated, punitive and compensatory damages, and attorney's fees.

 Defendant State of New York argues that its sovereign immunity under the Eleventh Amendment bars this action and moves, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss the complaint. In the alternative, the State seeks to dismiss the complaint, under Rule 12(b)(6), for failing to state a claim upon which relief can be granted. Plaintiffs do not dispute that Section 1983 does not abrogate the States' Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979). Rather, they contend that Congress, in the RFRA, abrogated the States' Eleventh Amendment immunity from suits alleging violations of the Free Exercise Clause.

 The Eleventh Amendment to the United States Constitution provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 The Eleventh Amendment confirms two fundamental principles in our federal system: first, that each State is a sovereign entity, and second, that "it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." Seminole Tribe of Florida v. Florida, U.S. , 116 S. Ct. 1114, 1122 (1996). Accordingly, the Eleventh Amendment bars actions brought in federal courts by citizens against unconsenting States. See id.; Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-103, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984).

 The States' sovereign immunity is not absolute, but can be abrogated by Congress, acting under Section 5 of the Fourteenth Amendment. See Seminole Tribe of Florida 116 S. Ct. at 1125 (1996) (recognizing that "the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution."); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985) ("The Eleventh Amendment is 'necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment . . . .' Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 49 L. Ed. 2d 614, 96 S. Ct. 2666 (1976)"). To determine whether Congress has abrogated the States' sovereign immunity, a court must ask two questions: first, whether Congress has acted pursuant to a valid exercise of power, and second, whether Congress has unequivocally expressed its intent to abrogate the immunity. See Seminole Tribe of Florida, 116 S. Ct. at 1123. Plaintiffs do not contend that Congress enacted the RFRA under an invalid exercise of power. The issue presented here is solely whether Congress intended the RFRA to abrogate the States' sovereign immunity.

 "Congress may abrogate the States' constitutionally secured immunity from Suit in federal court only by making its intention unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985); Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 29 (2d Cir. 1991), cert. denied, 502 U.S. 1094, 117 L. Ed. 2d 414, 112 S. Ct. 1168 (1992). In Dellmuth v. Muth, the Supreme Court proclaimed, "Lest Atascadero be thought to contain any ambiguity, we reaffirm today that in this area of the law, evidence of congressional intent must be both unequivocal and textual." Dellmuth v. Muth, 491 U.S. 223, 230, 105 L. Ed. 2d 181, 109 S. Ct. 2397 (1989).

 The RFRA was enacted by Congress as a response to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). See S. Rep. No. 103-111, at 1, reprinted in 1993 U.S.C.C.A.N. 1892, 1893. In that case, two Native Americans challenged Oregon's controlled substances law, which banned their use of peyote in religious observances. The Supreme Court held that the First Amendment's Free Exercise Clause did not prevent a State from prohibiting the sacramental use of peyote. In so ruling, the Court repudiated the "compelling interest" test when evaluating a facially neutral law of general applicability which burdens a religious practice.

 The purpose of the RFRA is to restore the "compelling interest" test. Its text begins with the following provisions:

 § 2000bb. Congressional findings and declaration of purposes

(a) Findings
The Congress finds ...

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