6th Circuit Upholds Michigan's Classroom Mask Mandate

In Resurrection School v. Hertel, (6th Cir., Aug. 23, 2021), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected free exercise, equal protection and due process challenges to Michigan's previous COVID-19 mask order for schools.  The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school. All 3 judges agreed that the case is not moot because the mask requirement might be re-imposed.  The majority, however, held:

[T]he district court ... correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability.

Judge Siler filed an opinion dissenting in part. Detroit News, reporting on the decision, says that the school will seek en banc review.

Religious Objections To Medical College's COVID Vaccination Requirement Upheld

In Magliulo v. Edward Via College of Osteopathic Medicine, ((WD LA, Aug. 17, 2021), a Louisiana federal district court issued a temporary restraining order barring a medical college from conditioning plaintiff students' enrollment on their receiving a COVID-19 vaccination. The students had requested an exemption from the college's requirements for religious reasons-- they believed the vaccine was derived from aborted fetal tissue. The college would grant the exemption only if the objecting students complied with extensive restrictions. The court held that Louisiana statutes allow students to assert religious or philosophical objections to the vaccine requirement. It also concluded that the refusal to exempt religious objectors violates the free exercise clause of the Louisiana constitution and the Louisiana Preservation of Religious Freedom Act.  The Louisiana Attorney General had backed the students' position in the case, and the AG's Office issued a press release discussing the decision.

Challenge To Superseded COVID Order Dismissed As Moot

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug. 16, 2021), a New Jersey federal district court dismissed as moot a challenge to a now superseded COVID-19 executive order by the governor of New Jersey limiting the number of people who could attend an indoor religious service. The court also held it will abstain under the Younger doctrine.

Challenge To Virginia's COVID Restrictions On Worship Services Dismissed As Moot

 In Tolle v. Northam, (ED VA, July 29, 2021), a Virginia federal district court dismissed as moot a lay minister's challenge to the Virginia governor's now-terminated COVID-19 orders.  Those orders had caused plaintiff's church to stop offering public worship services and otherwise limited gatherings for religious worship.

Supreme Court Justice Denies Church's Application For Injunction Pending Cert. Application

Yesterday, U.S. Supreme Court Justice Stephen Breyer in Calvary Chapel of Bangor v. Mills, denied  an application (full text) by a Maine church for injunctive relief pending disposition of its petition for certiorari. The church sought to prevent Maine's governor from reinstating COVID-related restrictions on worship services while exempting other activities. AP reports on the denial.

8th Circuit: Challenge To Church Capacity Limits Dismissed On Mootness and Standing Grounds

 In Hawse v. Page, (8th Cir., July 30, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, dismissed on standing and mootness grounds challenges to St. Louis County, Missouri's now-superseded COVID-related limit on the number of persons who could attend church services. The majority said in part:

Whether or not the churches were formally closed in April 2020, the complaint is bereft of an allegation that but for the Order, the churches attended  by the appellants would have allowed groups of ten or more persons to gather in the early weeks of the pandemic.

Judge Stras filed a dissenting opinion. 

Free Exercise Challenges To Illinois COVID Orders Dismissed As Moot

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, July 26, 2021), an Illinois federal district court dismissed as moot religious freedom challenges by two churches to Illinois Governor Jay Pritzker's now-expired emergency COVID-19 orders. The court said in part:

[I]t is absolutely clear that the alleged wrongful behavior— restrictions on religion due to the COVID-19 pandemic— are not reasonably expected to recur.

9th Circuit: COVID Closure of Private Schools May Have Violated Due Process Rights of Parents

In Brach v. Newsom. (9th Cir., July 23, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, rejected due process challenges to California's COVID-related closure of in-person instruction in public schools, but held that the closure of in-person instruction in private schools may have violated parents' and students' due process rights. The court said in part:

We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny.

Judge Hurwitz dissented in a lengthy opinion, arguing that the case is moot and also disagreeing with the majority's substantive reasoning.

6th Circuit Hears Arguments On Masking Requirement For K-5 Religious Schools

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Resurrection School v. Hertel. In the case, a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. (See prior posting.) Washington Post, reporting on appellants' arguments, said in part:

[A]ttorneys for Resurrection School in Lansing and two parents will tell the U.S. Court of Appeals for the Sixth Circuit that Catholic doctrine holds that every person is made in God’s image.

“Unfortunately, a mask shields our humanity,” the school argued in its lawsuit. “And because God created us in His image, we are masking that image.”

Plaintiff Lacks Standing To Challenge Michigan COVID Order Exemption For Worship Services

In Bormuth v. Whitmer, (ED MI, July 12, 2021), a Michigan federal magistrate judge denied plaintiff's motion to file a supplemental complaint in a challenge to a portion of Michigan Governor Gretchen Whitmer's now-rescinded COVID-19 Orders. At issue was an exemption from penalties for violation of stay-at-home orders by places of religious worship that allowed worship services, or by individuals travelling to places of worship. The court said in part:

The exemptions from prosecution for places of religious worship and their owners caused no harm to Plaintiff; if anything, they provided a protection to him. Under the exemptions, he enjoyed the freedom to practice his own religion at any indoor or outdoor “place of religious worship” without fear of prosecution....

The exemptions at issue neither established a state religion, nor favored particular religions, nor inhibited Plaintiff’s own free expression of genuinely-held religious beliefs. Indeed, the exemptions protected his expression of such beliefs....

Plaintiff’s proposed supplemental complaint still fails to demonstrate standing on the basis of a “concrete, particularized, and actual or imminent” injury... His proposed supplemental pleading will not cure the lack of justiciability identified in my prior report and recommendation.

Random COVID Screening In Parochial Schools Not An Establishment Clause Violation

In In re King v. Board of Education of the City School District of the City of New York, (App. Div., June 24, 2021), a New York appellate court upheld randomized in-school Covid-19 screening tests for students in parochial and private schools. The court said in part:

We reject respondents' contention that section 912 must be construed as permitting only health screening tests which primarily benefit the child, so as to avoid running afoul of the Establishment Clause. Respondents do not explain how randomized in-school Covid-19 screening tests would have "a primary effect that advances religion," the touchstone of the Establishment Clause.

Wisconsin Courts End COVID Suspension of Prison Religious Services

 In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., June 21, 2021), a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID. Wisconsin Institute for Law & Liberty has additional information on the case. Wisconsin Journal Sentinel reports that the Department of Corrections has extended the order to any religious denomination that wishes to offer in-person services.

Street Preacher Lacks Standing To Challenge COVID Restrictions

 In Gibson v. City of Vancouver, (WD WA, June 7, 2021), a Washington federal district court dismissed for lack of standing a suit by a street preacher who claims that Washington state's COVID-19 restrictions unconstitutionally target religious activities. He also contended that the City of Vancouver selectively targets religious protesters for arrest for violating COVID-19 restrictions. The court said in part:

The Defendants accurately describe this matter as a case in search of a controversy. There has been no specific or credible threat of enforcement, and there is no history of enforcement. Gibson’s claims were never ripe, and he did not and does not have standing to assert them....

Wisconsin COVID Order Closing Schools Violated Free Exercise Rights

In James v. Heinrich, (WI Sup. Ct., June 11, 2021), the Wisconsin Supreme Court in a 4-3 decision, held that under Wisconsin statutes, the local health officer had no authority to issue a COVID-19 Order that closed schools.  In addition, the majority held that such orders are unconstitutional under the Wisconsin state constitution, saying in part:

[T]hose portions of the Order restricting or prohibiting in-person instruction are unconstitutional because they violate a citizen's right to the free exercise of religion guaranteed in Article I, Section 18 of the Wisconsin Constitution....

Under Heinrich's Order, all schools in Dane County——including these private religious institutions——were required to cease all in-person instruction for students in grades 3-12 and instead provide a virtual learning environment. Consequently, all in-person religious practices interwoven with religious education at these schools——ones deemed essential to the Petitioners' exercise of their faith——were suspended by government decree.

Justice Hagedorn filed a concurring opinion. Justice Dallet, joined by Justices Bradley and Karofsy, dissented, disagreeing with the majority's statutory interpretation and contending the majority did not need to reach the constitutional question.

5th Circuit Hears Arguments On Louisiana COVID Limits On Churches

On Monday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Spell v. Edwards. In the case, a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. (See prior posting.) An application to the U.S. Supreme Court for an emergency injunction pending appeal was rejected by Justice Alito. (See prior posting.) AP reports on the oral arguments.

Church's Suit On COVID Limits Dismissed As Moot

In Calvary Chapel of Bangor v. Mills, (D ME, June 4, 2021), a Maine federal district court dismissed on mootness grounds a church's challenge to Maine Governor Janet Mills now-superseded COVID-19 limits on the number of people permitted to attend worship services. The court said in part:

Governor Mills has not employed a strategy of “moving the goalposts.” The fact that she retains some authority to reimpose restrictions does not mean that she is likely to do so, particularly given her counsel’s statements and her actions thus far. I conclude that the Defendant has demonstrated that it is absolutely clear that Governor Mills cannot reasonably be expected to reinstate the GATHERING ORDERS that are identified in the Complaint.

Previously the court had denied a temporary restraining order, and an appeal of that decision is currently pending in the U.S. Supreme court. Nevertheless, last week's decision was immediately appealed to the U.S. 1st Circuit Court of Appeals. Liberty Counsel issued a press release on the case.

Justice Gorsuch Denies "Shadow Docket" Injunction Pending Appeal Sought By Two Churches

In a little-noticed order on the Supreme Court's "shadow docket", earlier this week Justice Gorsuch, without referring the petition to the entire Court, denied an emergency application for an injunction pending appeal filed by two churches who oppose Colorado's COVID-19 executive orders and public health orders. In Denver Bible Church v. Polis, (US Sup. Ct., application denied 6/1/2021), the churches sought an injunction while appeals are pending to prohibit the state from issuing future disaster emergency or public health orders against houses of worship and from enforcing against them any current orders issued since the beginning of the COVID pandemic. (Full text of application and brief in support). SCOTUSblog has more on the action. Here are links to other filings in the case.

Challenges To Alabama COVID-19 Orders Are Unsuccessful

In Case v. Ivey, MD AL, June 1, 2021), six plaintiffs brought a range of constitutional challenges to Alabama Governor Kay Ivey's COVID-19 Orders. In a 68-page opinion, the court dismissed all of them-- some on standing or mootness grounds, others on substantive or qualified immunity grounds. Among the claims, one plaintiff contended that the Orders denied her the right to attend the church of her choice. Two pastors claimed that the Orders resulted in the denial of their right to preach and conduct in-person services. The court concluded that defendants had qualified immunity as to the damage claims against them for violating the First Amendment's Free Exercise, Freedom of Assembly and Establishment Clauses because plaintiffs did not plausibly allege that defendants’ conduct violated law that was clearly established at the time of their actions.

Another Church Seeks Emergency Injunction Against COVID Limits From Supreme Court

Last Friday, a Maine church filed a motion with the U.S. Supreme Court seeking an injunction while its petition for certiorari is pending to prevent Maine from enforcing its COVID-19 capacity restrictions on worship services. The petition (full text) in Calvary Chapel of Bangor v. Mills, (Sup. Ct. filed 5/21/2021), says in part:

For 381 days, Respondent Governor Janet Mills ... has been imposing unconstitutional restrictions on Calvary Chapel’s religious worship services while exempting myriad other activities from similar restrictions. Every religious worship gathering of Calvary Chapel from March 2020, to the present has been and is “illegal” under the Governor’s Orders. Maine imposes the most severe restrictions in the country on churches and places of worship.

Liberty Counsel issued a press release announcing the filing of the motion. 

County's Current COVID Restrictions Upheld

In Abundant Life Baptist Church of Lee's Summit, Missouri v. Jackson County, Missouri, (WD MO, May 17, 2021), a Missouri federal district court held that free exercise, free speech, freedom of assembly and Establishment Clause challenges to prior versions of Jackson County's COVID-19 restrictions should not be dismissed. However challenges to the current version of the restrictions were dismissed because the restrictions do not distinguish between churches and other businesses or indoor spaces.