Sunday, May 24, 2020

5th Circuit Enjoins Enforcement of City's COVID-19 Order Against Church Pending Appeal

Five days after a Mississippi federal district court, in an opinion critical of plaintiff's position, refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services (see prior posting), the U.S. 5th Circuit Court of Appeals in First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (5th Cir., May 22, 2020), granted an injunction pending appeal of enforcement of the city's COVID-19 Orders against the church. However the grant came with conditions, reflecting what appears to be ongoing animosity between the church and city officials, and somewhat competing Orders by the state and the city. In granting the injunction, the court said in part:
We do this upon the assurances by the Church that it will “satisf[y] the requirements entitling similarly situated businesses and operations to reopen.” In this vein, we refer the Church to the Governor’s new “Safe Worship Guidelines for In-Person Worship Services,” which appear similarly rigorous to the City’s requirements for reopening businesses but are tailored to church operations. These guidelines, if implemented in the spirit of the City’s orders, may help the Church abide by its safety pledge during this intervening period while the district court considers the injunction request and while the City continues the ongoing process of evaluating and revising its orders related to COVID-19.
In a concurring opinion, Judge Willett added considerable background:
The First Pentecostal Church of Holly Springs was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet you Stay home Now YOU HYPOKRITS.”
The City mentions the church burning in its latest brief, but in a manner less commendable than condemnable. One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime’s depravity, the City seized advantage, insisting that the Church’s First Amendment claim necessarily went up in smoke when the church did....
This argument is shameful.

Friday, May 22, 2020

Texas Supreme Court Rules In Favor of Break-Away Episcopal Diocese

The Texas Supreme Court today issued a decision in the long-running property dispute between the Episcopal Diocese of Fort Worth and its former parent body.  (See prior related posting.) In 2007 and 2008, the Diocese withdrew from The Episcopal Church (TEC) and affiliated with the more conservative Anglican Province of the Southern Cone.  In Episcopal Diocese of Fort Worth v. The Episcopal Church, (TX Sup. Ct., May 22, 2020), the court held:
Applying neutral principles to the undisputed facts, we hold that (1) resolution of this property dispute does not require consideration of an ecclesiastical question, (2) under the governing documents, the withdrawing faction is the Episcopal Diocese of Fort Worth, and (3) the trial court properly granted summary judgment in the withdrawing faction’s favor....
Explaining its holding, the court said in part:
At bottom, the disagreement centers on what effect the majority’s disassociation vote had on the Fort Worth Diocese’s identity specifically, whether the majority faction constitutes the continuation of that entity or whether the majority left as individuals and became something else. ...
In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer. But applying neutral principles to the organizational documents, the question of property ownership is not entwined with or settled by those determinations. The Fort Worth Diocese’s identity depends on what its documents say. To that end, the Diocesan Constitution and Canons provided who could make amendments and under what circumstances; none of those circumstances incorporate or rely on an ecclesiastical determination by the national church; and nothing in the diocese’s or national church’s documents precluded amendments rescinding an accession to or affiliation with TEC. Applying neutral principles of law, we hold that the majority faction is the Fort Worth Diocese and parishes and missions in union with that faction hold equitable title to the disputed property under the Diocesan Trust.
The court went on to also reject TEC's claim that the Diocese's property was held in trust for TEC.

Trump Presses For Reopening of Houses of Worship

In remarks today (full text) from the Blue Room balcony to ceremony honoring veterans and POW/ MIA's, President Trump said in part:
Today, I just spoke to CDC.  We want our churches and our places of faith and worship; we want them to open.  And CDC is going to be — I believe today they’re going to be issuing a very strong recommendation.  And I’m going to be talking about that in a little while.  But they’re going to be opening up very soon.  We want our churches open.  We want our places of faith, synagogues — we want them open.  And that’s going to start happening.  I consider them essential, and that’s one of the things we’re saying.  We’re going to make that essential.
You know, they have places “essential” that aren’t essential, and they open.  And yet the churches aren’t allowed to open and the synagogues and — again, places of faith — mosques, places of faith.  So that’s going to — see that — you’re going to see that.
Later, at a White House press conference, the President again spoke about reopening of houses of worship. CNBC reports on the press conference:
President Donald Trump on Friday demanded that governors reopen churches, synagogues and mosques “right now,” and threatened to “override” state leaders’ restrictions if they do not do so by the weekend....
Trump said it was an “injustice” that some state leaders have allowed “liquor stores and abortion clinics” to stay open amid the Covid-19 pandemic while closing houses of worship.
“It’s not right,” Trump said. “I’m calling houses of worship essential.”
“If there’s any question, they’re going to have to call me, but they’re not going to be successful in that call,” Trump said of state leaders.
“The governors need to do the right thing and allow these very important essential places of faith to open right now, for this weekend,” Trump said.
“If they don’t do it, I will override the governors.” ...
White House press secretary Kayleigh McEnany, when asked what authority allows Trump to override a governor’s rules, did not provide a specific provision.
Instead, she said “the president will strongly encourage every governor to allow their churches to reopen – and boy, it’s interesting to be in a room that desperately wants to seem to see these churches and houses of worship stay closed.”
UPDATE: Here is the CDC's Interim Guidance for Communities of Faith.

Pastor Sues Over Delaware COVID-19 Restrictions On Church Services

According to the Delaware News Journal, on Tuesday Rev. Christopher Bullock, pastor of  Canaan Baptist Church in New Castle, filed suit against Delaware Governor John Carney over COVID-19 limits on church services. The suit was filed a day after the Governor loosened restrictions somewhat. According to the paper:
[G]atherings must be limited to 30% of the fire code capacity and strict social distancing must be maintained. In-person services were previously limited to 10 people at a time. 
Also, service times cannot run longer than one hour and must be staggered for the area to be cleaned. 
These guidelines can be problematic for some churches, said Bullock, who added that some African American preachers take about an hour to get started. He also pointed out that depending on the size of the temples and congregations, worshipers might not be able to attend God's House as often as they choose.  
"It is too intrusive. We know how to take care of ourselves," he said. "We don't need the government to tell us what to do, how long to do it and why to do it."

Local Wisconsin COVID-19 Orders Challenged On 1st Amendment Grounds

A lawsuit was filed this week in a Wisconsin federal district court against ten local public health officers and a number of other local and state officials seeking to prevent enforcement of local COVID-19 Emergency Orders after the Wisconsin Supreme Court invalidated a statewide emergency order because it exceeded legislative authority and was improperly adopted. (See prior posting.) This week's lawsuit was brought by seventeen plaintiffs, one of whom is a pastor.  The complaint (full text) in Yang v. Powers, (ED WI, filed 5/20/2020) alleges in part that the local orders violate plaintiffs' free exercise rights and the Establishment Clause, as well as their freedom of assembly and equal protection rights. Urban Milwaukee reports on the lawsuit.

Thursday, May 21, 2020

CDC Withholds Guidance On Reopening Of Churches

Washington Post reported yesterday:
The CDC this week issued a detailed road map for reopening schools, child-care facilities, restaurants and mass transit. On Tuesday night, the agency issued additional guidance in the form of “health considerations” for summer camps, including overnight camps, and youth sports organizations and colleges.
But there are currently no plans to issue guidance for religious institutions, according to three administration officials who spoke on the condition of anonymity to discuss policy decisions....
In the end, the decision to hold back reopening guidance for religious institutions came from some White House and coronavirus task force officials who did not want to alienate the faithful and believed that some of the proposals, such as limits on hymnals, the size of choirs or the passing of collection plates, were too restrictive, according to two administration officials.

Maryland Stay-At-Home Orders Upheld Over Free Exercise and Other Challenges

In Antietam Battlefield KOA v. Hogan, (D MD, May 20, 2020), a Maryland federal district court rejected several constitutional challenges to Maryland Governor Larry Hogan's COVID-19 stay-at-home orders. Among the plaintiffs were several pastors and a deacon who complain that the orders bar them from holding religious services with more than 10 people, and from attending weddings and funerals in person. Rejecting plaintiffs' free exercise claims, the court said in part:
This court agrees with the reasoning of the many courts that have found similar orders to be neutral and generally applicable.... The Governor’s order is neutral because it proscribes conduct (gatherings of more than 10 people) without regard to whether that conduct is religiously motivated or not. There is no indication that the order is meant to target conduct because of its religious motivation.
The order is also generally applicable. The plaintiffs argue that the order is underinclusive because it still allows some businesses to “accommodate large crowds and masses of persons,” such as Lowe’s and Walmart.... But plaintiffs have not shown that these activities are comparable to religious services. First, these businesses are part of the critical infrastructure, according to the U.S. Department of Homeland Security’s Cybersecurityand Infrastructure Security Agency.... and, unlike religious services, they cannot operate remotely...
Second, the plaintiffs have not shown that allowing essential businesses to remain open is “nonreligious conduct that endangers these interests in a similar or greater degree than” religious services....
Daily Record reports on the decision.

Defamation Suit Dismissed Under Ecclesiastical Entanglement Doctrine

In Lippard v. Holleman, (NC App., May 19, 2020), the North Carolina Court of Appeals affirmed the dismissal of a defamation suit brought by a former church pianist and vocalist against the Baptist church's pastor and its minister of music. A dispute over assignment of a vocal solo had escalated leading to plaintiff's dismissal. Plaintiff sued over various statements made in connection with her termination. The court held:
... [D]etermining the truth or falsity of Defendants’ alleged defamatory statements—where the content of those statements concerns whether Plaintiffs complied with [Diamond Hill Baptist Church's] practices—would require us to interpret or weigh ecclesiastical matters, an inquiry not permitted by the First Amendment....
We affirm the trial court’s order on the ground that all statements Plaintiffs challenge are barred by the ecclesiastical entanglement doctrine.
Chief Justice McGee concurred in part and dissented in part.  [Thanks to Will Esser via Religionlaw for the lead.]

Wednesday, May 20, 2020

DOJ Says California Is Discriminating Against Places of Worship In Reopening Plan

As reported by the Los Angeles Times, the Department of Justice Civil Rights Division yesterday sent a letter (full text) to California Governor Gavin Newsom complaining about discriminatory treatment of houses of worship in the state's COVID-19 Reopening Plan. The letter says in part:
Places of worship are not permitted to hold religious services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are permitted to operate with social distancing....
We believe... that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.

Labor Department Issues New Guidance On Religious Liberty Protections

The U.S. Department of Labor announced last week (May 15) that it has issued a directive and a guidance to advance religious liberty protections. the directive, among other things, instructs DOL to:
Ensure religious organizations are given the opportunity to compete equally with non-religious organizations for Federal financial assistance at the Federal and State levels.
The Guidance (full text) implements Executive Order 13798 in connection with federal grants administered by DOL. The Guidance says in part:
Religious organizations that receive DOL financial assistance retain their programmatic independence from Federal, State, and local governments and may continue to carry out their missions and maintain their religious character. This autonomy includes, among other things, the right to use the organizations’ facilities to provide DOL-supported social services without removing or altering religious art, icons, scriptures or other religious symbols, and the right to govern themselves and to select board members on a religious basis. Faith-based organizations, like all organizations receiving DOL financial assistance, must not use direct DOL financial assistance to support any explicitly religious activities... [including] for example, worship, religious instruction, and proselytization....
If an organization conducts explicitly religious activities using non-DOL funds and also offers social service programs using direct DOL support, then that organization must offer the explicitly religious activities at a time or in a place that is separate from the programs receiving direct DOL support....

Catholic School Sues For More Adequate State Bus Transportation

On Friday, a pre-K through 8th grade Catholic school in Madison, Wisconsin announced that it has filed suit against the Madison, Wisconsin Metropolitan School District to obtain state-funded bus transportation that meets its current class starting time.  The complaint (full text) in St. Maria Goretti Congregation v. Madison Metropolitan School District, (WI Cir. Ct., filed 5/15/2020), alleges in part:
Chapter 121 of the Wisconsin Statutes requires school districts ... to provide and fund transportation services to both public and private-school students in their boundaries, with “reasonable uniformity” in the transportation offered.... [T]he District provides busing to its own students that drops them off reasonably before the start of their school day. Yet, despite its plain statutory obligations, the District has adamantly refused to provide similar busing for the upcoming 2020–21 term to the students of St. Maria Goretti School.... Instead, the District has repeatedly informed St. Maria Goretti that it would only provide and fund busing that drops off its students 70 minutes after its current start time. So, the District is forcing St. Maria Goretti to substantially change its start and end times to receive busing, devastating almost every aspect of the school, including its Catholic mission; or to accept manifestly inadequate services that drops off its students well after the beginning of the school day; or to pay for busing services itself, despite the substantial burdens this would impose. This unequal, unjust treatment violates Chapter 121.
The school also filed a 47-page brief (full text) in support of its motion for a temporary injunction or writ of mandamus.

Tel Aviv Mayor Sues New Transportation Minister For Libel Over Claims About Tefillin Stands

Yeshiva World reported yesterday on a libel lawsuit filed in Israel by Tel Aviv Mayor Ron Huldai against newly-appointed Transportation Minister Miri Regev.  The suit, filed in Tel Aviv- Jaffa Magistrate's Court, seeks damages equivalent to $142,000 (US). According to the report:
The lawsuit refers to public statements Regev made at a February campaign event, at which she accused Huldai of coming out against Judaism and freedom of religion by banning Tel Aviv residents from putting on tefillin.
Huldai says that in February, the city of Tel Aviv banned all kinds of stands (including tefillin stands which urge passers-by to put on phylacteries) within 100 meters of schools and other public buildings that serve minors. He says that Regev intentionally distorted the facts and refused to correct her statements. He says that he had no input into the decision and that it did not single out tefillin stands.

Court Refuses To Dismiss Title VII Suit Because Ministerial Exception Unclear On Facts

In Tucker v. Faith Bible Chapel International, (D CO, May 18, 2020), a Colorado federal district court refused to dismiss a Title VII and state common law complaint brought against Faith Christian Academy. The suit was filed by Gregory Tucker who was a science teacher and chaplain/ director of student life at Faith Christian Academy.  Gregory was fired after he organized a controversial chapel service titled "Race and Faith." Defendant contends that the "ministerial exception" doctrine bars the lawsuit. The court said in part:
I find that whether Mr. Tucker was a “minister” within the meaning of the “ministerial” exception” is genuinely disputed on the evidence presented. Defendant’s position is substantially grounded in the wording of documents, most notably the extension agreement that characterized Mr. Tucker as “chaplain” and the handbook which purports to make all teachers and other full-time employees “ministers.” To be sure, those documents are relevant to the issue. But the substance of Mr. Tucker’s position turns on the totality of the facts and circumstances of his employment, and he has come forward with facts that, if believed by the jury, could rationally support the opposite conclusion.

Tuesday, May 19, 2020

France's Council of State Orders Lifting of COVID-19 Ban On Worship Services

Yesterday, France's highest court, the Council of State, ruled that within 8 days the government must lift its COVID-19 ban on gatherings at houses of worship. Currently only funerals, with no more than 20 people in attendance may be held in houses of worship.  Reporting on the decision, Euronews said:
The judge highlighted that the government authorised public gatherings of up to 10 people in other settings and that as such the blanket ban "is disproportionate to the objective of preserving public health."
The ruling adds that freedom of worship is a fundamental right which "includes among its essential components the right to participate collectively in ceremonies, in particular in places of worships" and that the government's decree "constitutes a serious and manifestly unlawful interference with it".
It called on the government to take measures that are "strictly proportionate to the health risks incurred".
[Thanks to Eric Rassbach via Epidemiclaw for the lead.]

RFRA Defense Rejected In Possession of Firearms Case

Inner City Press reports on a sentencing decision handed down yesterday in a New York federal district court in U.S. v. Cruz. The trial court judge rejected defendant's Religious Freedom Restoration Act defense in his sentencing hearing for illegal possession of a loaded firearm. Defendant's counsel argued that defendant's possession of the firearm was "solely for use in the ceremonial practice of his religion, Palo Mayombe. Firearms hold only symbolic meaning in the ritual practice of the religion and involve no violence or threat of violence." The judge sentenced defendant to 21 months in prison followed by three years of supervised release.

Oregon Trial Court Enjoins Enforcement of State's COVID-19 Orders In Suit By Churches

In Elkhorn Baptist Church v. Brown, (OR Cir. Ct., May 18. 2020), an Oregon state trial court granted a preliminary injunction against further enforcement of the governor's COVID-19 emergency orders in a suit brought by 16 churches and a number of other plaintiffs who complain that the order prevents them from hold ingchurch services.  The court held that under the relevant legislation invoked by the governor, a state of emergency could be declared only for up to 28 days.
[W]hen the Governor utilized the provisions of ORS 433.441 in her executive order, she triggered all the provisions of ORS 433.441 including the time restrictions in ORS 433.441(5). By doing so, the executive order became null and void beyond the maximum 28-day time period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are also null and void....
The Governor has an enormous responsibility to protect the lives of the citizens of our state balanced against the citizens’ constitutional rights to freedom of religion which includes how he or she chooses to worship. The Governor’s orders are not required for public safety when Plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the Governor have been authorized to do.
Reporting on the decision, The Oregonian says that the governor's office has filed an appeal with the Oregon Supreme Court.

UPDATE: According to a statement on Twitter by Governor Brown, late last night the Oregon Supreme Court reinstated her emergency orders while the state Supreme Court hears arguments in the appeal.

Monday, May 18, 2020

British Government Task Force To Develop Rules For Reopening of Houses of Worship

In Britain last Friday, the Ministry of Housing, Communities and Local Government announced a new interfaith task force to develop a plan for the phased and safe reopening of places of worship. According to the release:
No place of worship will be able to reopen before a final decision by the government and the accompanying change to the legal position in the published regulations. Faith organisations will be able to reopen at a slower pace if they wish.
[Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, May 17, 2020

Court Strikes Down North Carolina Limits On Worship Services

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor's COVID-19 order that limits indoor worship services to ten people. Saying that "There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.," the court continued:
The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.
News & Observer reports on the decision.

Louisiana Limits On Church Services Upheld

In Spell v. Edwards(MD LA, May 15, 2020), a Louisiana federal district court upheld the validity of the Louisiana governor's COVID-19 restrictions on church services.The court said in part:
At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person.... Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering.... 
The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.
(See prior related posting).

Court Is Critical of Church's Litigation Tactics In Challenge To COVID-19 Order

In First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (ND MS, May 14, 2020), a Mississippi federal district court refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services.  Both the state and the city have issued  COVID-19 orders that are similar, but the church views the state as being more friendly to religious exercise.  The court, in an  opinion critical of the church's continued litigation, said in part:
This court has found the City to be quite accommodating of the free exercise of religion in this case, including by quickly amending its ordinance to expressly grant plaintiff the right to conduct the drive-in services which it previously requested. Nevertheless, plaintiff appears to regard the Governor, but not the City, as a friend of the exercise of religion, and, that being the case, this court can discern little point in the City choosing to increase its legal exposure by adopting its own executive orders relating to church services, when they are so similar to the Governor’s. The City’s choice of whether or not to adopt the Governor’s orders will be moot if it is determined that the Governor’s orders pre-empt the City’s, but this court raises this as one potential step to bridge the gap of mistrust which clearly exists between the parties in this case.....
Plaintiffs’ briefing on this issue heightens this court’s impression that this entire lawsuit is nothing more than a deeply misguided attempt on their part to gain permission to endanger their own lives and those of their fellow community members. While this court does not rule out the possibility that indoor church services could be held at acceptable risk by a responsible church if sufficient precautions were taken, it has grave concerns whether the plaintiff in this case is sufficiently aware of the gravity of these matters to enable it to do so....
This court observes that plaintiff has made a habit in this litigation of taking the time to carefully prepare briefs (its brief in support of its current motion is 26 pages long) and then demanding an immediate ruling from this court, with opposing counsel left to make hurried arguments in a telephonic hearing. This is a fundamentally unfair process, and this court will no longer tolerate it.