Suit Challenges Ohio County's COVID-19 School Closure Order

Three Toledo, Ohio area Christian schools and a state-wide organization of evangelical and Catholic schools filed suit yesterday in an Ohio federal district court challenging a Health Department's COVID-19 Resolution requiring secondary schools to end in-person teaching.  The complaint (full text) in Monclova Christian Academy v. Toledo-Lucas County Health Department, (ND OH, filed 12/7/2020), alleges in part:

If the Resolution is allowed to take effect, on December 4 at 4:00 p.m. in Lucas County, one will still be free to crowd in retail stores, go bowling with friends, go to the movies, attend concerts, go to a hair salon, get a manicure or massage or tattoo, or even go to the casino. Although there are limits and restrictions that govern how such in-person activities must operate, the Resolution has not prohibited them or altered the way in which those groups of people gather or use facilities. Yet, starting on December 4 at 4:00 p.m., Grades 7-12 (or 9-12 depending on school configuration) are strictly prohibited from attending in-person school, even when religious education is a deep and sincere facet of one’s faith, and even when those operating religious schools are abiding by strict social distancing and hygiene standards.

Citizens for Community Values issued a press release announcing the filing of the lawsuit. 

Supreme Court Remands Church's Challenge To COVID Restrictions

In Harvest Rock Church v. Newsom,(US Sup. Ct., Dec. 3, 2020), the U.S. Supreme Court issued an Order treating the church's application for an injunction as a petition for certiorari before judgment, and granted the petition. It then vacated the district court's order and remanded the case for further consideration in light of the Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In the case, a church challenged California Governor Gavin Newsom's COVID-19 restrictions on indoor worship services. (See prior posting.)  New York Times reports on the Supreme Court's Order.

Christian School Asks Supreme Court To Reinstate District Court's Injunction Against Kentucky's COVID Order

The battle continues in Kentucky over Governor Andrew Beshear's COVID-19 Order that prohibits in-person instruction at all public and private elementary and secondary schools. In a suit by Danville Christian Academy-- backed by Kentucky's Attorney General-- the federal district court enjoined the enforcement of the Order against private religious schools which follow other public health guidelines. Last Sunday, the U.S. 6th Circuit Court of Appeals stayed, pending appeal, the district court's preliminary injunction. (See prior posting.) Yesterday the school filed an emergency application with the U.S. Supreme Court asking it to stay the 6th Circuit's order and allow the district court's injunction to go into effect. (Full text of Emergency Application in Danville Christian Academy, Inc. v. Beshear, (Sup. Ct., filed 11/30/20). In accordance with Supreme Court practice, the emergency application was filed with the Justice assigned to the 6th Circuit (Justice Kavanaugh), who may either rule on it or refer it to the full Court. First Liberty issued a press release announcing the filing of the application.

6th Circuit Rejects Preliminary Injunction Against Kentucky's Closure of Religious Schools

In Commonwealth of Kentucky ex rel. Danville Christian Academy v. Beshear, (6th Cir., Nov. 29, 2020), the U.S. 6th Circuit Court of Appeals stayed a federal district court's preliminary injunction against part of Kentucky Governor Andrew Beshear's COVID-19 Order which prohibits in-person instruction at all public and private elementary and secondary schools. The district court had enjoined enforcement of the Order against private religious schools that otherwise follow public health measures. The 6th Circuit, in staying the district court's preliminary injunction pending appeal distinguished the U.S. Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, saying in part:

Executive Order 2020-969 applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest....

Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were “targeted” or “gerrymandered” to ensure an impact on religious groups.... In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not.... There is no comparable harsh requirement aimed at religious institutions here.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

French Council of State Says Capacity Limits On Worship Services Are Too Strict

Religious freedom challenges to COVID-19 restrictions have spread to Europe. EuroWeekly reports that on Friday French Catholic bishops appealed to the Council of State, the country's highest court, challenging the country's 30-person limit on religious ceremonies. According to Reuters, today the Council of State ordered the government to review the restrictions, saying:

The claimants are right in saying that the measure is disproportionate in light of protecting the public's health ... thus it is a serious and illegal infringement on the freedom of worship.

According to Reuters:

The Conference of French Bishops welcomed the ruling and said that it would meet French Prime Minister Jean Castex later on Sunday to discuss new rules to limit the risk of coronavirus infection during church services.

"No other activity is limited by such a limitation regardless of surface area," it said.

Catholic organisations are proposing to allow churches to utilise 30% of their seating capacity.

Justice Alito Refuses To Enjoin Louisiana's COVID Restrictions On Churches

On Nov. 10, in Spell v. Edwards, a Louisiana federal district court dismissed a suit by megachurch pastor Tony Spell challenging the state's COVID-19 limits on worship services. Plaintiff filed an Emergency Application for an Injunction Pending Appeal with Supreme Court Justice Samuel Alito, contending:

This case presents a threshold question that other applicants did not present to this Court in prior religious liberty challenges: Whether the First Amendment places the decision of whether to assemble solely within the jurisdiction of the Church and not the State.

 On Nov. 27, Justice Alito, without referring the Application to the full court, denied the Application. Law & Crime reports on Justice Alito's action.

Supreme Court Enjoins, Pending Appeal, New York's COVID-19 Capacity Limits On Houses of Worship

The U.S. Supreme Court late last night, in a 5-4 decision, enjoined-- while appeals are pending-- New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (Sup. Ct., Nov. 25, 2020), in a decision that also applies to Agudath Israel of America v. Cuomo, the Court's per curiam opinion said in part: 

[S]tatements made in connection with the challenged rules can be viewed as targeting the “ ‘ultra-Orthodox [Jewish] community.’ ”... But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities....

[T]here are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue....

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

Justice Gorsuch filed a concurring opinion, stating in part:

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids....

Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.

Chief Justice Roberts filed a dissenting opinion arguing that while the restrictions pose serious concerns, the Court should not rule on them because the houses of worship before the Court are no longer in red and orange zones. He also criticized Justice Gorsuch's attack on the dissenters in the case.

Justice Kavanaugh filed a concurring opinion, explaining why he disagrees with Chief Justice Roberts' approach.

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, pointing out that the houses of worship are no longer under the challenged capacity limits and saying in part:

The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.

Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion, saying in part:

It is true that New York’s policy refers to religion on its face. But as I have just explained, that is because the policy singles out religious institutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them....

Finally, the Diocese points to certain statements by Governor Cuomo as evidence that New York’s regulation is impermissibly targeted at religious activity—specifically, ... New York’s Orthodox Jewish community.... The Diocese suggests that these comments supply “an independent basis for the application of strict scrutiny.”... I do not see how.... Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,”....

 New York Times reports on the decision.

Kentucky Governor Enjoined From Enforcing Closure of Religious Schools

 In Danville Christian Academy, Inc. v. Beshear, (ED KY, Nov. 25, 2020), a Kentucky federal district court enjoined Kentucky's governor  from enforcing his COVID-19 prohibition on in-person instruction against any religious private school in the state that adheres to applicable social distancing and hygiene guidelines. The court found that the restriction violates the school's free exercise rights, saying in part:

[A]lthough the Governor would like the Court to only compare schools in the context of the executive order and find the order to be one of general applicability, Maryville instructs otherwise. In answering the general applicability question in Maryville, the Sixth Circuit questioned why law firms, laundromats, liquor stores, and gun shops could stay open while churches, despite following CDC-approved guidelines, could not. 957 F.3d at 614. The restrictions which the Sixth Circuit criticized as “inexplicably applied to one group and exempted from another” are similar to those Danville Christian challenges today. This Court wonders why under this executive order, one would be free to attend a lecture, go to work, or attend a concert, but not attend socially distanced chapel in school or pray together in a classroom that is following strict safety procedures and social distancing.... Of even more significance, preschools in the state remain open after this executive order, as do colleges and universities.... The prohibition on in-person teaching is not narrowly tailored as required by Lukumi.

As reported by WKYT News, the state will request an emergency stay of the judge's order from the 6th Circuit.

Kentucky AG Sues Its Governor Over Religious School Closures

Last Friday, Kentucky's Attorney General along with a Kentucky Christian school filed a lawsuit in federal district court against Kentucky Governor Andrew Beshear challenging his recent COVID-19 Order barring schools-- including private religious schools-- from meeting in person. The complaint (full text) in Danville Christian Academy, Inc. v. Beshear, (ED KY, filed 11/20/2020) alleges in part:

The order contains no accommodations for religious education , despite such education being recognized by the Supreme Court as a “vital” part of many faiths... And, like the Governor’s previously enjoined orders, the latest order burdens religious institutions while arbitrarily allowing other gatherings that pose similar health risks to continue.

Regardless of how well-intentioned the Governor might be, his actions violate the federal and state constitutions and Kentucky’s Religious Freedom Restoration Act. His actions also infringe on the autonomy of religious institutions and violate the Constitution’s Establishment Clause.

The Attorney General issued a press release announcing the filing of the lawsuit.

Church Seeks Supreme Court Relief Against California COVID-19 Restrictions

As reported by Pasedena Now, Harvest Rock Church last Saturday filed an Emergency Application for an Injunction pending appeal (full text) with the U.S. Supreme Court. The Pasadena, California church is challenging Gov. Gavin Newsom's COVID-19 restrictions.

In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Newsom’s Orders that restrict in-person worship services. (See prior posting). Liberty Counsel issued a press release announcing the filing of the petition.

Oregon COVD-19 Limits On Parochial Schools Upheld

The Oregonian yesterday reported on federal district judge's ruling from the bench in Horizon Christian School v. State of Oregon, (D OR, Nov. 17, 2020) denying a preliminary injunction to three Christian schools challenging Gov. Kate Brown’s COVID-19 executive order that limits the schools to remote instruction. According to the report:

Attorney John Kaempf, representing Horizon Christian School, McMinnville Christian Academy and Life Christian School, had urged the judge to halt the governor’s executive order and allow the three schools to reopen with in-person classes and proper safeguards in place.

He argued that gathering communally is a tenet of Catholic education, and not allowing the schools to hold in-person religious classes violates their freedom of religion and expression....

U.S. District Judge Michael W. Mosman said he found it “utterly implausible,” that the governor’s motive behind her executive order was to shut down religious schools.

Previously the court had denied a temporary restraining order in the case. (See prior posting.)

Brooklyn Diocese Asks Supreme Court To Enjoin COVID-19 Church Capacity Limits

Yesterday, an Emergency Application for Writ of Injunction (full text) was filed by the Catholic Diocese of Brooklyn in its challenge to New York Governor Andrew Cuomo's limitations on the number of persons who can attend a worship service during the COVID-19 pandemic. (See prior posting.) The U.S. Second Circuit Court of Appeals, in a 2-1 decision, refused to grant an injunction pending appeal to the Diocese and to a group of Jewish synagogues in the challenge to special restrictions on spots in which clusters of COVD-19 cases have broken out. SCOTUSblog reports on yesterday's filing.

UPDATE: On Nov. 16, the synagogues filed a similar Emergency Application. (Full text). SCOTUSblog has more on the filing.

Early Supreme Court Review Sought In Church's Challenge To Nevada COVID-19 Limits

In July, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending appeal to a church that was challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting). A Nevada federal district court had upheld the governor's Order. Arguments are scheduled next month in the church's appeal to the 9th Circuit. However, last week the church filed a petition (full text) asking the U.S. Supreme Court to grant review in the case before it is heard by the 9th Circuit. Calvary Chapel Dayton Valley v. Sisolak, (certiorari filed, 11/5/2020). ADF issued a press release announcing the filing.

2nd Circuit Denies Injunction Pending Appeal Of NY Governor's Cluster Zone Limits On Houses of Worship

In Agudath Israel of America v. Cuomo, (2d Cir., Nov. 9, 2020), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision refused to grant an injunction pending appeal to a group of Jewish synagogues and to the Catholic Diocese of Brooklyn in a case challenging New York Gov. Andrew Cuomo's restrictions on spots in which clusters of COVD-19 cases have broken out. (See prior posting.) The majority said in part:

The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings....

Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings.

Judge Park dissented, saying in part:

Here, the executive order does not impose neutral public-health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. Such targeting of religion is subject to strict scrutiny.

Hamodia reports on the decision.

Suit Filed Over School's Ban On Religious Messages On COVID-19 Masks

Suit was filed yesterday in a Mississippi federal district court challenging the policy of a Mississippi elementary school that prohibits display of religious (as well as political and sexual) messages on masks worn during the COVID-19 pandemic. The complaint (full text) in L.B. v. Simpson County School District, (SD MS, filed 11/2/2020), alleges that school officials would not allow a third-grade student to wear her mask that displayed the phrase "Jesus Loves Me". The suit claims this amounts to violation of the free speech, free exercise and due process clauses. ADF issued a press release announcing the filing of the lawsuit.

Court Upholds New York's COVOD-19 Cluster Action Initiative

In Soos v. Cuomo, (ND NY, Oct. 30, 2020), a New York federal district court refused to enjoin New York's Cluster Action Initiative begun in early October that targets specific areas for enhanced COVID-19 restrictions.  Houses of Worship were a specific concern of Gov. Cuomo in issuing the executive order creating the Initiative. The court said in part:

To find in plaintiffs' favor under these circumstances would be to second-guess the State's medical experts and scientific and public health findings with respect to what constitutes an "essential" business, which would run afoul of Jacobson and its progeny.... Indeed, the State has arguably shown that, according to their medical and public health experts, religious gatherings pose a unique risk to the spread of COVID-19, and, thus, "although the [Initiative] establishes rules specific to religious gatherings, it does so because they are gatherings, not because they are religious."... 

Accordingly, for purposes of the pending motion, the court is satisfied that the Initiative was guided by science and data, and not a mere desire to target religion, and thus, the Initiative does not exceed the "broad limits" described in Newsom. Additionally, plaintiffs' claims are unlikely to succeed on the merits even applying strict scrutiny review because the injunction is not in the public interest....

Suit Challenges Michigan Mask Mandate Imposed On Catholic School

Suit was filed last week in a Michigan federal district court challenging state COVID-19 orders requiring elementary school students to wear masks during the school day. The complaint (full text) in Resurrection School v. Gordon, (WD MI, filed 10/22/2020), alleges, among other things, that the requirement violates students' free exercise and free speech rights. The complaint, brought by a Catholic school along with some students and parents, alleges in part:

At the start of the school year in August 2020, Plaintiffs C.M., Z.M., and N.M. were beginning to engage in Catholic fellowship with their classmates and form relationships with other children based upon the teachings and example of Jesus Christ. Mandating Plaintiff Mianecki’s young children to wear facial coverings is hindering the formation of these bonds and prevents the body of Christ from freely associating....

When wearing facial coverings, Plaintiffs C.M., Z.M., and N.M struggle to engage in and celebrate the Mass....

For many, including Plaintiffs, forcing them to wear a face mask is forcing them to convey a message with which they disagree even when socially distanced in private homes or non- public schools. Wearing a mask conveys the message that the wearer has surrendered his or her freedom to the government, particularly in light of the facts of this current declared pandemic. During this current political climate, a mask has become a symbol. And because a mask has become a political symbol, the wearing of a mask is a form of symbolic speech. Consequently, via the mask mandates, Defendants are compelling Plaintiffs to engage in a form of expression and to convey a message with which they disagree.

Lansing State Journal reports on the lawsuit.

Colorado Limits On Worship Services Enjoined

In Denver Bible Church v. Azar, (D CO, Oct. 15, 2020), a Colorado federal district court granted a preliminary injunction barring enforcement against two churches of portions of Colorado's COVID-19 restrictions on worship services. The court said in part:

Plaintiffs are likely to succeed on the merits of their free exercise claim for a simple reason. Having decided that the risk of allowing various activities to be exempt from the strictest Safer at Home rules is justified on the basis that those activities are critical and necessary, the State cannot decide for Plaintiffs what is critical and necessary to their religious exercise. With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic.... So Colorado’s failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment’s guarantee of the free exercise of religion....

Note well that the implications of this conclusion aren’t as broad as some might hope or others might fear. Plaintiffs will still be subject to the neutrally applicable rules and prohibitions in Public Health Order 20-35. They will, for example, have to enforce sanitization requirements, maintain social distancing between individuals, and not permit shaking hands.... All in all, based on their bona fide religious need to do so, Plaintiffs will be allowed to open their sanctuaries subject to the same capacity, social distancing, and masking rules that are applicable to other critical businesses, and will be able to permit congregants to remove their masks if and when it is necessary to carry out their religious exercise.

CBSN Denver reports on the decision.

More Litigation Developments In Religious Institution Challenges To COVID-19 Restrictions

Suit was filed last week in an Oregon federal district court challenging Oregon's COVID-19 Orders and guidance that grant small public schools, but not small private or religious schools, an exemption from the ban on in-person instruction. The complaint (full text) in Hermiston Christian Center v. Brown, (D OR, filed 10/16/2020) asserts various 1st and 14th Amendment claims, including the charge that the Orders unlawfully target religious schools. ADF issued a press release announcing the filing of the lawsuit.

Becket announced that it filed suit last week in Lebovits v. Cuomo, (ND NY, filed 10/15/2020). The suit is brought on behalf of two young women and their Orthodox Jewish school.  It challenges New York City's lock down in zip codes in which there are micro-clusters of COVID-19.

Amistad Project announced that it filed suit over the weekend in Libertas Classical Ass'n v. Whitmer, (WD MI), on behalf of a K-12 Christian school in Hudsonville, MI. According to the press release:

... [T]he Whitmer Administration has made repeated, unreasonable demands on the school since September 4, including that kindergarteners always wear masks while in school, including during chapel and outdoor recess....

This violates the First Amendment rights of assembly and religion for the school's 265 students, as well as parents and staff.

In Maryville Baptist Church, Inc. v. Beshar, (6th Cir., Oct. 19, 2020), the U.S. 6th Circuit Court of Appeals refused to allow a church and its congregants to obtain an appellate court ruling on a dispute that had essentially become moot.  In March 2020, Kentucky Governor Andy Beshear had barred all religious services as part of the state's response to the COVID-19 pandemic. Federal courts preliminarily enjoined the ban from going into effect and subsequently the Governor ended the ban. Liberty Counsel issued a press release announcing the decision.

In Gish v. Newsom, 2020 U.S. Dist. LEXIS 192714 (CD CA, Oct. 9, 2020), a California federal district court refused to reconsider its decision upholding the state's COVID-19 Orders that limit indoor religious services.

New York's Zip-Code Targeted COVID-19 Limits Are Upheld

In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, Oct. 16, 2020), a New York federal district court refused to grant a preliminary injunction to the Diocese in its challenge to New York's COVID-19 cluster action initiative that targets specific zip codes. A TRO had previously been denied. (See prior posting.) Rejecting plaintiff's arguments, the court said in part:

[T]he excerpts from the Governor's public comments do not transform a neutral law into a religiously targeted one. The evidence shows that Governor Cuomo is clearly aware and concerned that EO 202.68 burdens religious practice, and particularly the religious practice of Orthodox Jews, but awareness that the burden of a law falls unequally does not establish that the law was designed to target religious groups. Indeed, as the Governor reportedly told a group of Jewish community leaders, although the policy is a "very blunt" instrument, its purpose is to "get the numbers down in the zip codes." ... The court reads the Governor's statement to say that EO 202.68 is targeted temporarily at all gatherings in the areas where there are spikes in COVID-19 positivity rates, not at religious gatherings in particular.