New Jersey COVID-19 Limits On Indoor Church Services Upheld

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug.  20, 2020), a New Jersey federal district court rejected a church's challenge to the limits on indoor worship services imposed in New Jersey governor's COVID-19 orders,  The court said in part:

Although Plaintiffs have made a compelling case that the Executive Orders were crafted with religious indifference, the Court may not invalidate the executive orders on those grounds alone. In the end, Plaintiffs have been unable to demonstrate that the restrictions on indoor gatherings were crafted with religious animus, have been applied unequally, or lack a rational relationship to a legitimate government objective....

Plaintiffs are rightfully disillusioned that the State has not prioritized indoor religious activity to the same degree as outdoor social justice protests. The State’s apathy to sincerely held religious beliefs, alone, however, does not establish unequal treatment as it pertains to indoor gatherings. Because the Court concludes that Plaintiffs have failed to establish that the Executive Orders, as they pertain to large indoor gatherings, are not facially neutral and generally applicable, the Court finds that Plaintiffs have not established a likelihood of success on the merits.

Challenge To California COVID-19 Limits On Church Services Rejected

 In Whitsitt v. Newsom, (ED CA, Aug. 19, 2020),a California federal magistrate judge recommended dismissing a challenge to the California governor's COVID-19 orders that limited attendance at church service. Rejecting plaintiff's free exercise challenge, the court said in part:

Here, the Stay at Home Order and the subsequent guidelines are facially neutral regarding religion. The Order directs all residents to stay home “except as needed to maintain continuity of operations” of certain business sectors.... The Order exempts “[f]aith based services that are provided through streaming or other technology.” ... Although the Order expressly mentions religious services, it does so to exempt them from its restrictions. The mention of religious services in this context—to exempt them from the Stay at Home Order—does not transform the Order into a facially discriminatory one.

Church's Battle Against California Indoor Worship Ban Leads To Court Decisions, and Defiance

 As previously reported, last week church and its pastor filed suit in a California state trial court challenging on state constitutional grounds California's COVID-19 restrictions on worship services. A Thomas More Society press release recounts part of the developments since then:

Hours after Grace Community Church filed suit to invalidate Los Angeles County’s unconstitutional restrictions on churches, the county filed for a temporary restraining order to force the church to stop holding indoor services and comply with unreasonable and over-broad demands. Judge James Chalfant denied almost all of the county’s requests at the August 14 Los Angeles Superior Court hearing, agreeing with MacArthur and the church that it is the county’s burden to show why they should be permitted to infringe on the constitutionally protected rights of churches to freely exercise religion....

 Attorneys for Grace Community Church explained that Los Angeles County was being unreasonable in its demands, and offered to have the congregation comply with face mask wearing and social distancing indoors until the matter could be fully heard.... The judge agreed and set the full hearing for September 4, 2020, ordering the church to have congregants wear masks and social distance between family groups indoors.

The county immediately filed for a writ of mandate with the state court of appeals seeking to override the trial court's order so that it could enforce the COVID-19 ban on indoor church services. The Court of Appeals quickly stayed the trial court's order to the extent it prevented the county from enforcing the ban,  In County of Los Angeles v. Superior Court of Los Angeles County, (CA App., Aug. 15, 2020), the court said in part:

At this very preliminary stage in this litigation, the County has demonstrated a likelihood that it will prevail on the merits of enforcing its July 18, 2020 Health Order. The County's Health Order is presumed to be constitutional unless its "unconstitutionality clearly, positively and unmistakably appears."

According to Religion News Service:

On Sunday morning [Aug. 16], the church met anyway — inside, unmasked, and without adhering to social distancing.

[Pastor] MacArthur noted the church’s defiance during the service, saying, “the good news is that you’re here, you’re not distancing, and you’re not wearing masks.” The congregation cheered in response.

4th Circuit Refuses To Stay Injunction Allowing Mifepristone By Mail

Last month, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. (See prior posting.) Now in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (4th Cir., Aug. 13, 2020), the U.S. 4th Circuit Court of Appeals refused to grant a stay of the injunction pending appeal. Courthouse News Service reports on the court's order. [Thanks to Scott Mange for the lead.]

Churches Challenge Minnesota COVID-19 Limits On Worship Services

Three churches and their pastors filed suit this week in a Minnesota federal district court challenging the state's COVID-19 limits on worship services.  The complaint (full text) in Cornerstone Church of Alexandria v. Walz, (D MN, filed 8/13/2020), alleges in part:

The plaintiffs’ religious liberties under the Free Exercise Clause of the First Amendment of the United States Constitution have been violated by Governor Walz’s Executive Orders 20-74 and 20-81. Although during a pandemic, the ordinary constitutional test of strict scrutiny may not apply to the Governor’s regulation of church activities (although it is still argued here in Count I), the government’s regulations must still be “capable of a reasoned application” as they would be for a non-public forum....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Challenges California COVID-19 Limits On Worship Services

 A church and its pastor filed suit this week in a California state trial court challenging on state constitutional grounds California's COVID-19 restrictions on worship services. The complaint (full text) in Grace Community Church of the Valley v. Newsom, (CA Super. Ct., filed 8/12/2020) reads in part:

13. It is time for California to recognize that disfavored religious minorities are not second-class citizens. It is time for California to explain how it can justify banning worship to prevent the spread of a disease (with an overall mortality rate of 0.02%) while it is fine for protestors to spread that disease like wildfire.... In a society hostile to religion, banning worship might be justified to prevent deaths. But how can California—the land of the Missions—justify unfairly imposing the burden of lowering coronavirus infection rates (not death rates) on worshippers?

14. The California State Constitution ... specifically protects the individual right to free exercise of religion. The State would not be justified to place restrictions disparately and unequally in the manner it has even against a regular business or gathering; however, Grace Community Church and every other house of worship in California enjoy heightened protection because our Founders recognized that the church has throughout world history been the target of secular kings and tyrants, not unlike Gavin Newsom....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Claims Mask Requirement At Church Services Violates Free Exercise Protections

 A suit filed last week in a Florida state trial court contends that a Florida county's COVID-19 face covering requirement violates, among other things, the free exercise rights of plaintiff, a pastor.  The complaint (full text) in Tillis v. Manatee County, (FL Cir. Ct., filed 8/2/2020) contends that the mask requirement violates the state constitution's free exercise clause, as well as the Florida Religious Freedom Restoration Act because it:

requires both clergy members like Plaintiff and churchgoers to wear masks during service or face government civil fines and punishment.... [T]he requirement to wear a mask ... infringes upon the free exercise of Plaintiff's religion by making it more difficult for him to preach and for members of the choir at his church to sing.

The Conversation reports on the lawsuit.

Weddings In Restaurant Cannot Be Limited More Than Dining

 In DiMartile v. Cuomo, (ND NY, Aug. 7, 2020), a New York federal district court preliminarily enjoined enforcement of a COVID-19 50-person limit on weddings when they are held in a restaurant which is allowed to seat more people when operating for dining. The court said in part:

The Court is not persuaded by the State Defendants’ argument that the fact that part of the purpose of a wedding is for the married couple to interact with friends and family is sufficient to justify finding that weddings are practically dissimilar from ordinary dining and thus do not merit to be treated the same as an ordinary dining use of the venue.

County Sues Church For Violation of COVID Orders

The county of Ventura, California filed suit in a state trial court yesterday seeking a temporary restraining order and an injunction against a church and its pastor for holding indoor worship services in violation of state and local COVID-19 orders.  The complaint (full text) in County of Ventura v. Godspeak Calvary Chapel, (CA Super. Ct., file 8/5/2020), alleges in part:

The wrongful conduct of defendants ..., unless and until enjoined and restrained by the court, will cause and continue to cause great and irreparable injury to the general public ... by creating a significant risk of further community spread of COVID-19, including hospitalizations and deaths, which in turn is likely to result in continued and further restrictions on businesses and other operations and activities within Ventura County, detrimentally affecting the quality of life of the entire community.

Ventura County Star reports on the lawsuit.

Trump Campaign Circumvents Nevada Church Limits By Holding Evangelical Rally At Casino

As previously reported, last month the U.S. Supreme Court refused to grant an injunction pending appeal to a Nevada church challenging the differential treatment of churches and casinos under the Governor's COVID-19 orders. Now according to Microsoft News:

President Trump's campaign is holding an "Evangelicals for Trump" event on Thursday at a Las Vegas hotel and casino, amid a controversial ban in the state on gatherings of more than 50 people in houses of worship while places like casinos are subject to a less stringent 50 percent capacity limit.

The event is scheduled to take place at ... one of the many joint hotels and casinos in Las Vegas. It will feature Trump spiritual adviser Pastor Paula White ... and others. The full event title is "Evangelicals for Trump: Praise, Prayer and Patriotism."

"In a time when many Nevadans can’t go to church because of overreaching restrictions, President Trump’s campaign is bringing together evangelicals from across the community to pray, worship and discuss key issues facing Americans in the November election," Trump 2020 deputy national press secretary Ken Farnaso said in a statement.

Anti-Kapparot Group Renews Attempt To Get NYC Police Enforcement of Health Code

As previously reported, in 2018 New York's highest court refused a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur religious practice of kaporos using live chickens. The court held that mandamus cannot be used to order discretionary enforcement action.  Now a motion to renew the request for a mandamus petition has been filed, alleging that the COVID-19 pandemic has revealed new evidence relevant to the claim. In Alliance to End Chickens as Koporos v. New York City Police Department, (NY Ct. Sup. Ct.) a motion and affidavit (full text) filed 7/6/2020, focuses in large part on the animal-to-human spread of COVID-19, saying in part:

99. In light of the health, economic, and financial devastation caused [by] Covid-19, in light of how this pandemic [has] caused our lives to come to a grinding halt, in light of the hundreds of thousands of lives lost worldwide, and in light of the fact that Covid-19 originated from a live animal wet market, we cannot allow our police department to pick and choose what lows to enforce when it comes to the health code. Too much is at stake, which we all so painfully are currently aware of.

JTA reports on these developments. Attorney for plaintiffs issued a press release on the filing.

Attack On Connecticut COVID-19 Orders Rejected

In Murphy v. Lamont, (D CT, Aug. 3, 2020), a Connecticut federal district court rejected a wide-ranging constitutional attack, including 1st Amendment challenges, on the COVID-19 orders of Connecticut Governor Ned Lamont. The court found that plaintiffs lack standing, saying in part:

... Barnes asserts that he is “impeded from attending church.”... However, because no Executive Order prohibits religious worship, Barnes cannot show that the conduct he wishes to engage is “proscribed by statute.” ... Furthermore, Barnes alleges no facts as to his intention to attend religious services or any specific occurrence where he was prevented from doing so.

Murphy also asserts an injury to his religious liberty, along with his freedom of association. He alleges that, “[b]efore the illegal lock down orders, my family participated in a homeschooling group, in which we met in a church. We have not met since this lock down.”... Like Barnes’ allegations, these allegations are too vague to establish an injury-in-fact.

The court also found that plaintiffs were unlikely to succeed on the merits, saying in part:

Executive Order 7TT limits attendance of places of worship to 25% of building capacity or a maximum of 100 attendees, whichever is fewer.... In South Bay United Pentecostal Church, 140 S. Ct. at 1613, the Chief Justice, in his concurrence in the judgment denying a temporary injunction, found that those same restrictions (in California) did not violate the Free Exercise Clause. The court reaches the same conclusion here. The challenged Executive Orders are plainly neutral, and plaintiffs have not proffered any evidence to suggest that the Governor has any animus towards religious organizations. Indeed, more severe restrictions apply to secular gatherings.

Supreme Court, 5-4, Refuses To Enjoin Pending Appeal Nevada Limits On Worship Services

By a 5-4 vote, the U.S. Supreme Court on Friday refused to grant an injunction pending appeal to a church that is challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. A Nevada federal district court upheld the Nevada Order. ( See prior posting). The 9th Circuit denied an emergency motion for injunctive relief pending appeal. In Calvary Chapel Dayton Valley v. Sisolak, (US Supreme Court, July 24, 2020), while the majority did not file an opinion explaining their vote, the four dissenting Justices did. Justice Alito filed a dissenting opinion, joined by Justices Thomas and Kavanaugh, finding free speech and free exercise violations, saying in part:

The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services. A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy—and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing.

Justice Gorsuch filed a brief dissent, saying in part:

The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Justice Kavanaugh also filed a separate dissent, laying out a broad framework for approaching religion cases. He says in part:

The definitional battles over what constitutes favoritism, discrimination, equality, or neutrality can influence, if not decide, the outcomes of religion cases. But the parties to religion cases and the judges deciding those cases often do not share a common vocabulary or common background principles. And that disconnect can muddy the analysis, build resentment, and lead to litigants and judges talking past one another.

In my view, some of the confusion and disagreement can be averted by first identifying and distinguishing four categories of laws: (1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations. As I will explain, this case involving Nevada’s reopening plan falls into the fourth category.

Suit Challenges South Carolina Grants To Private School Students

As reported by The Island Packet, a South Carolina state court judge in Adams v. State of South Carolina, (SC Com.Pl., July 21, 2020) has issued a temporary restraining order (full text) prohibiting the distribution of  Safe Access to Flexible Education (SAFE) Grants until a July 29 hearing in the case.  The grants are in the form of one-time tuition vouchers for low-income families sending their children to  private schools (including religious schools). They are funded through the federal CARES Act.  In a complaint (full text) filed July 21, a taxpayer contends that the grants violate the ban in the South Carolina constitution on the expenditure of public funds for the direct benefit of any religious or other private educational institution. The complaint alleges that the grants will give private school students some 13 times as much as the amount received per public school student under the CARES Act.

Texas AG Says Cities Cannot Restrict Reopening of Religious Private Schools

A July 17 press release from Texas Attorney General Ken Paxton reads in part:

Attorney General Ken Paxton today issued a guidance letter to religious private schools in Texas, informing them that local public health orders attempting to restrict their reopenings violate the United States and Texas Constitutions and the Texas Religious Freedom Restoration Act. Moreover, local orders seeking to restrict the reopening of religious private schools or institutions is inconsistent with Governor Abbott’s executive orders, and therefore, are invalid.

Here is the full text of the letter, which concludes:

Thus, as protected by the First Amendment and Texas law, religious private schools may continue to determine when it is safe for their communities to resume in-person instruction free from any government mandate or interference. Religious private schools therefore need not comply with local public health orders to the contrary.

TRO Denied In Church's Suit Over California COVID Limits on Worship

On Friday, a California federal district court refused, on procedural grounds, to issue a temporary restraining order to a California church that filed suit challenging Governor Newsom's COVID-19 orders restricting worship services. In Harvest Rock Church, Inc. v. Newsom, (CD CA, July 20, 2020), the court in a two-page opinion said in part:

Harvest Rock seeks this injunctive relief without providing notice to Governor Newsom of either the Complaint or the TRO, yet fails to satisfy the requirements to obtain such an injunction without notice.

Pasedena Now reports on the decision.

California COVID-19 Limits On Worship Services Challenged

Suit was filed last week in a California federal district court challenging Gov. Gavin Newsom's various COVID-19 restrictions on indoor worship services. The complaint (full text) in Harvest Rock Church, Inc. v. Newsom, (CD CA, filed 7/17/2020), points to the total prohibition on indoor worship services in 30 counties, numerical and capacity limits on worship services in other counties, a ban on singing or chanting during indoor worship services, a ban on small-group Bible studies in private homes, and discriminatory limits on the kinds of activities that can be carried on in church buildings. The complaint alleges violations of free exercise, freedom of assembly and free speech rights, as well as of the Establishment Clause, Equal Protection, and Guarantee Clause. Liberty Counsel issued a press release announcing the filing of the lawsuit.

California's COVID-19 Ban On Worship Singing and Chanting Is Challenged

On Wednesday, a suit was filed in a California federal district court challenging California Governor Gavin Newsom's COVID-19 Order relating to restrictions on reopened church services.  The state's Guidance document requires that places of worship discontinue singing and chanting.  No similar requirement is placed on other reopened activities. The complaint (full text) in Calvary Chapel of Ukiah v. Newsom, (ED CA, filed 7/15/2020), alleges that the selective ban violates plaintiffs' 1st and 14th Amendment rights. It says in part:

The Worship Ban, on its face and as applied, impermissibly burdens Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs or the mandates in Defendants’ Worship Ban.

The Hill reports on the lawsuit.

Clergy Cannot Get Inmates' Executions Delayed Because of COVID Fears

In Hartkemeyer v. Barr, (SD IN, July 14, 2020), an Indiana federal district court refused to delay the execution of prisoners in two separate cases where the prisoners' ministers of record argued that scheduling the execution during the COVID-19 epidemic violates the clergy's rights under  RFRA.  Each of the clergymen had a sincerely held religious belief that they needed to attend to the spiritual needs of the prisoner facing execution.  The court rejected the argument, saying n part:

The mere scheduling of an execution imposes no obligation or restriction on the religious advisor whom the condemned prisoner has selected to attend.

CNA reports on the decision.

Court Upholds New Mexico's COVID-19 Limits On Church Services In Lengthy Opinion

In a 268-page opinion in Legacy Church, Inc. v. Kunkel, (D NM, July 13, 2020), Legacy Church lost its challenges under the Free Exercise Clause and the Freedom of Assembly Clause to New Mexico Department of Health Kathyleen Kunkel’s Public Health Emergency Orders imposing various restrictions on gatherings for religious services. Summarizing its holdings, the court concluded that the Public Health Orders "are neutral with respect to religion and generally applicable;" and they "are unrelated to the suppression of speech or religion, serve a compelling state, interest, and less restrictive alternatives are not available."