In Global Impact Ministries v. Mecklenburg County, (WD NC, March 1, 2022), a North Carolina federal district court allowed pro-life demonstrators who were arrested for violating a county-city COVID stay-at-home order to move ahead with their free exercise, but not their free speech, claim for nominal damages. Discussing the free exercise claim, the court said in part:
Until fairly recently, the Supreme Court’s Free Exercise jurisprudence was highly deferential to COVID-19 regulations that burdened religion.... That deference changed dramatically with the Supreme Court’s decisions in Roman Catholic Diocese v. Cuomo ... and Tandon v. Newsom....
Plaintiffs allege that the Proclamation precluded them from engaging in pro-life activities, which Plaintiffs believe are a form of religious ministry.... They allege that shoppers at Home Depot were exempted from gathering limits, while their religiously motivated gatherings were prohibited.... Those activities are comparable for purposes of the Free Exercise analysis.... Because shopping indoors is likely to present greater risk for spreading COVID-19 than socially distanced sidewalk advocacy, strict scrutiny must apply here....
Moving to the free speech claim, the court said in part:
Defendant Mecklenburg County argues that the Proclamation was a valid content-neutral time, place, and manner restriction.... The Court agrees....
There is admittedly an obvious logical incongruity in finding that the Proclamation was not content-neutral for purposes of the free exercise claim, but content-neutral for purposes of the free speech claim. But neither the Supreme Court nor the Fourth Circuit has applied Tandon’s modified approach to content neutrality outside of the context of free exercise claims.
