Jewish Summer Camps In New York Lose Challenge To COVID-19 Closures

In Ass'n of Jewish Camp Operators v. Cuomo, (ND NY, July 6,2020), a New York federal district court rejected arguments that New York state, among other things, violated the Free Exercise clause "by discriminatorily banning children’s Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to curbing the transmission of the COVID-19 virus...." The court said in part:

Plaintiffs argue that Defendant’s executive orders are not neutral because his refusal to allow overnight camps to open effectively targets Jewish overnight camps (given that almost all of the secular or non-Jewish overnight camps had already decided they would not open in the summer of 2020 by the time Defendant and Health Commissioner Zucker specifically clarified on June 12, 2020, that overnight camps would not be allowed to open). Although it is true that “[t]he effect of the law in its real operation is strong evidence of its object,” it is likewise true that “adverse impact will not always lead to a finding of impermissible targeting.” ... Plaintiffs have provided no factual allegations or evidence to indicate that the fact that only Jewish overnight camps have continued to plan to open for the summer leads to the conclusion that Defendant’s executive orders have targeted the Jewish faith. To the contrary, it is undisputed that Defendant’s ban on overnight camps applies equally to all such camps, regardless of the camps’ religious (or secular) nature. The fact that Plaintiffs have maintained a hope and willingness to operate or send their children to overnight camps this summer longer than most persons involved with secular or non-Jewish overnight camps does not somehow turn Defendant’s facially neutral executive order into impermissible targeting.

The court also rejected 14th Amendment challenges contending that the closures infringed parental rights to control the upbringing of their children. Times Herald Record reports on the decision.

Justice Kavanaugh Refuses To Enjoin Illinois District Court's Upholding of COVID-19 Limits On Political Gatherings

As previously reported, on July 2 an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. On July 3, the U.S. 7th Circuit Court of Appeals denied plaintiffs' application for a injunction pending appeal. Plaintiffs immediately filed an Emergency Application for an Injunction (full text) with the U.S. Supreme Court, through a filing with Justice Kavanaugh who is Circuit Justice for the 7th Circuit.  The petition requested relief by 5:00 pm on July 4. On July 4, Justice Kavanaugh denied the request. Washington Examiner reports on the Supreme Court's action.

British Pastors Sue Challenging Government COVID-19 Orders Which Closed Churches

In Britain, a group of 26 Christian pastors and activists have filed suit challenging the closure of churches as part of the response to COVID-19, even though the government has allowed reopening of churches as of July 4.  The complaint (full text) in The Queen on application of Omooba v. Secretary of State for Health and Social Care, (QB, filed 6/23/2020), contends in part:

The Claimants do not for a moment suggest that churches should have continued to operate as before notwithstanding the Coronavirus epidemic. Rather, the Claimants’ concern is that, as a matter of principle, the imposition of appropriate anti-epidemic measures in the Church is ultimately a matter for Church authorities rather than secular state authorities.

Christian Concern issued a press release announcing the filing. Free Thinker blog has additional reporting.

Illinois Can Favor Religious Gatherings Over Political Ones

In Illinois Republican Party v. Pritzker, (ND IL, July 2, 2020) an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. The court said in part:

Because the exemption is a content-based restriction, this provision can only stand if it survives strict scrutiny....

Plaintiffs contend that the Governor cannot satisfy the least restrictive means test because a political party caucus is no more likely to spread COVID-19 than a church service.... However, the Constitution does not accord a political party the same express protections as it provides to religion.... Additionally, the Order’s limited exemptions reinforce that it is narrowly tailored. The Order only exempts two other functions from the gathering limit: emergency and governmental functions. These narrow exemptions demonstrate that the Order eliminates the increased risk of transmission of COVID-19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at this stage in demonstrating that the Order is narrowly tailored to further a compelling interest, and the Order survives strict scrutiny.

New York Enjoined From Enforcing Stricter Limits Against Worship Services

In Soos v. Cuomo, (ND NY, June 26, 2020), a New York federal district court granted a preliminary injunction barring New York from enforcing COVID-19 orders that impose stricter limits on worship services than on other activities. The suit was brought by two Catholic priests and three Orthodox Jews.  The court said in part:

Assuming, without deciding, that the challenged laws are neutral, plaintiffs have demonstrated a likelihood of success on the merits with respect to their free exercise claim because it appears that the challenged laws are not generally applicable, and that they would fail strict scrutiny....

On its face, the 25% indoor capacity limitation applies only to houses of worship... Indeed, that limitation is the only one of its kind in the tangle of executive orders and the Guidance Document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity. The “nonessential businesses,” dubbed “Phase 2 industries” by executive order, that enjoy a 50% capacity limitation are, however, not justifiably different than houses of worship.

The court enjoined the state:

(1) from enforcing any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries, provided that plaintiffs follow social distancing requirements as set forth in the applicable executive orders and guidance; and

(2) from enforcing any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance.

Thomas More Society issued a press release announcing the decision.

Saudi Arabia Limits Hajj To Residents To Limit COVID Spread

Saudi Arabia's Ministry of Hajj and Umrah announced on Monday that because of COVID-19 the Hajj this year will be extremely limited, saying in part:

in light of the continuation of the pandemic and the risks of Coronavirus spreading in crowded spaces and large gatherings, and its transmission between countries,  and the increase in average infections globally, it has been decided that Hajj for this year (1441 H/ 2020 AD) will be held whereby a very limited number of pilgrims from various nationalities who already reside in Saudi Arabia, would be able to perform it.  This decision is taken to insure Hajj is performed in a safe manner from a public health perspective while observing all preventative measures and the necessary social distancing protocols....

5th Circuit Dismisses Church's Challenge To COVID-19 Order As Moot

In Spell v. Edwards, (5th Cir., June 18, 2020), the U.S. 5th Circuit Court of Appeals dismissed as moot a constitutional challenge to Louisiana Governor John Bel Edwards' COVID-19 order that restricted in-person church services to ten congregants. On June 5, the Governor issued a new order allowing churches to operate at 50% of capacity. Judge Ho concurred, but said that a future case might turn out differently.  He said in part:

If protests are exempt from social distancing requirements, then worship must be too....

Such support for the protests reflects a commendable commitment to equality. But public officials cannot devalue people of faith while elevating certain protestors. That would offend the First Amendment—not to mention the principle of equality for which the protests stand.

Suit Challenges COVID-19 Closure of Jewish Overnight Camps

Suit was filed yesterday in a New York federal district court challenging New York COVID-19 orders that require Jewish overnight camps to remain closed this summer. The complaint (full text) in Association of Jewish Camp Operators v. Cuomo, (ND NY, filed 6/18/2020), alleges in part:

5. On June 12, 2020, Defendant announced that overnight camps would be closed for the summer of 2020 under his COVID-19 orders, without making any exceptions for Jewish overnight camps, notwithstanding that these overnight camps involve core religious exercise.

6. In contrast, Defendant has made a broad First Amendment exception from his COVID-19 orders for First Amendment activities that he favors. In particular, Defendant has created a de facto exemption from his COVID-19 orders for mass demonstrations ... even though these mass protests pose greater risks of the transmission of COVID-19 than do Jewish overnight camps.

7. Defendant also has allowed a wide array of similar, secular activities to remain open....

11. Defendant’s statewide closure of all Jewish overnight camps this summer violates Plaintiffs’ constitutional rights of the free exercise of religion and the fundamental rights of parents to control the religious education and upbringing of their children, guaranteed by the First and Fourteenth Amendments of the United States Constitution and Article III, § 3 of the New York Constitution. 

[Thanks to Steven H. Sholk for the lead.]

7th Circuit Upholds Illinois COVID-19 Restrictions On Worship Services

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., June 16, 2020), the U.S. 7th Circuit Court of Appeals rejected a church's challenge to Illinois Governor J.B. Pritzker's COVID-19 orders which restrict-- or in their latest form urge restriction-- on the size of worship services. The court said in part:

Plaintiffs maintain ... that the ten-person cap disfavors religious services compared with, say, grocery shopping (more than ten people at a time may be in a store) or warehouses (where a substantial staff may congregate to prepare and deliver the goods that retail shops sell)....

So what is the right comparison group: grocery shopping, warehouses, and soup kitchens, as plaintiffs contend, or concerts and lectures, as Illinois maintains? Judges of other appellate courts have supported both comparisons....

It would be foolish to pretend that worship services are exactly like any of the possible comparisons, but they seem most like other congregate functions that occur in auditoriums, such as concerts and movies.... Functions that include speaking and singing by the audience increase the chance that persons with COVID-19 may transmit the virus through the droplets that speech or song inevitably produce....

Courthouse News Service reports on the decision.

Suit Challenges NY Worship Restrictions vs. Permitted Floyd Protests

Suit was filed last week in a New York federal district court by two Catholic priests and three Orthodox Jews challenging limits on worship services imposed by  New York state and city COVID-19 orders. The complaint (full text) in Soos v. Cuomo, (ND NY, filed 6/10/2020), alleges in part:

[W]hile defendants jointly impose this arbitrary, pseudo-scientific regime of strict gathering limits for some groups and activities but not others, they are permitting closely packed gatherings of thousands to protest the wrongful death of George Floyd at the hands of a police officer, which have been taking place in New York City and every other major city in New York State day-after-day since Floyd’s death on May 25.

Plaintiffs' Memorandum In Support of an Application for a Preliminary Injunction (full text) contends in part:

Here, the Orders only purport to mandate a general limit on non-essential gatherings across the state. But aside from the voluminous formal exemptions that undermine the Orders’ general applicability ..., Defendants recently granted an individualized exemption to mass gatherings protesting the death of George Floyd at the hands of a police officer.... These protests have involved hundreds or thousands of protestors all across the state, often packed together shoulder-to-shoulder in express derogation of the Orders’ limits on gathering sizes and social distancing.... And yet, while Defendants expressly approve of these gatherings, they have insisted that limits on religious gatherings remain in place.... This is exactly the type of disparate individualized assessment that must pass strict scrutiny under the Free Exercise Clause.

Thomas More Society issued a press release announcing the filing of the lawsuit. [Thanks to Steven H. Sholk for the lead.]

UPDATE: Here is defendants' Memorandum of Law in Opposition to Application for Injunctive Relief.

Court Upholds Nevada COVID-19 Restrictions On Worship Services

In Calvary Chapel Dayton Valley v. Sisolak, (D NV, June 11, 2020), a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing.  Citing the U.S. Supreme Court's recent South Bay decision, the court said in part:

Given that there are some secular activities comparable to in-person church services that are subject to more lenient restrictions, and yet other activities arguably comparable to in-person church services that are subject to more stringent restrictions, the Court cannot find that the Emergency Directive is an implicit or explicit attempt to specifically target places of worship.... Additionally, whether a church is more like a casino or more like a concert or lecture hall for purposes of assessing risk of COVID-19 transmission is precisely the sort of “dynamic and fact-intensive” decision-making “subject to reasonable disagreement,” that the Court should refrain from engaging in.

Courthouse News reports on the decision. [Thanks to Scott Mange for the lead.]

Suit Challenges New Jersey's COVID-19 Limit On Worship Services

Earlier this week, two churches and their pastors filed suit in a New Jersey federal district court challenging New Jersey's COVID-19 orders which limit worship services to ten people.  The complaint (full text) in Solid Rock Baptist Church v. Murphy, (D NJ, filed 6/3/2020) alleges in part:

[L]ocal police officers have visited the churches, installed cameras on church property for surveillance purposes, investigated the parking lot of one church, filed Complaints against the 3 pastors for allowing religious gatherings that exceed the 10-people limit, even though the gathered individuals were separated by six feet and wore masks unless hindered from doing so for health reasons, while occupying the sanctuary, meeting or exceeding the social distancing and personal hygiene recommendations for “Essential Services” still permitted to gather.

... The Defendants’ Orders are not neutral laws of general applicability because they target constitutionally protected activity, significantly burden the Plaintiffs’ right to the freedom of religion and assembly, establish an orthodox form of religious exercise approved by the State of New Jersey, all the while providing broad exemptions for many secular activities that are not constitutionally protected....

[Thanks to Matthew Brown for the lead.]

3rd Circuit, 2-1, Affirms Dismissal of Church's Challenge To Delaware COVID-19 Limits

In Bullock v. Carney, 2020 U.S. App. LEXIS 17374 (3d Cir., May 30, 2020), a majority of a 3-judge panel in the U.S. 3rd Circuit Court of Appeals upheld a Delaware federal district court's denial of a preliminary injunction to a pastor who objected to the Governor's COVID-19 restrictions on worship services. In a one-sentence order, the court affirmed the district court "substantially for the reasons set forth in the Court's May 29, 2020 Memorandum Opinion."  Judge Phipps filed a dissenting opinion, saying in part:

Reverend Bullock does not bring a free exercise claim in isolation, but rather he also challenges a restriction on a communicative element of that freedom. Specifically, he disputes limitations on gathering size, preaching, baptism, and communion. And in any event, because these restrictions govern churches specifically, they do not act as neutral and generally applicable regulations. Accordingly, to be constitutional, the Governor's order must survive strict scrutiny.

A reasonable probability exists that the Governor's order does not meet that most exacting standard of constitutional scrutiny....  Here, the Governor's order furthers a compelling state interest — preventing the spread of the coronavirus. But ... a reasonable probability exists that the Governor will not be able to demonstrate that the challenged restrictions on churches are narrowly tailored to accomplishing that goal.

Church's Challenge To St Louis COVID-19 Order Dismissed As Moot

In Church of the Word v. St. Louis County Executive Dr. Sam Page, (ED M, May 31, 2020), a Missouri federal district court dismissed as moot (with leave to amend) a church's challenge to St. Louis County's COVID-19 restrictions on church services. The court said in part:

Plaintiff filed its lawsuit seeking injunctive relief from St. Louis County’s April 20, 2020, Stay-at-Home Order1 two days after that Order had been superseded, and twelve days after the County had enacted the superseding law.

St. Louis Post Dispatch reports that yesterday the court granted plaintiff's motion for a voluntary dismissal.

TRO Denied In Church's Challenge To Delaware COVID-19 Order

In Bullock v. Carney, (D DE, May 29, 2020), a Delaware federal district court refused to issue a temporary restraining order to the pastor of Canaan Baptist Church who objected to Delaware Governor John Carney's COVID-19 restrictions on worship services. The court refused the TRO in part because the governor's restrictions had been liberalized by a May 23 order. Additionally the court said:

... Dr. Bullock's counsel argued that his client would be irreparably harmed as a result of three restrictions imposed by the May 23rd Guidance: (1) the requirement that preachers wear a mask while preaching; (2) the requirement that the pastor ( or anyone else) not hold a person during the course of the person's baptism; and (3) certain requirements that relate to the preparation and distribution of communion.... There is, however, no record evidence to support these assertions, and attorney argument cannot establish a showing of irreparable harm.

The court added:

[M]y decision today has no bearing on the merits of Dr. Bullock's claims. Those claims implicate one of our most treasured rights protected by the Constitution-the right to exercise freely one's religion. And they implicate as well the fundamental right of a state "to protect itself against an epidemic of disease which threatens the safety of its members.".... These important principles make this an important case, and my decision today will afford me the opportunity to give the case the considered reflection it deserves.

Delaware News Journal reports on the decision.

US Supreme Court, 5-4, Refuses To Enjoin California's Limits On Worship Services

On Friday night, by a vote of 5-4, the U.S. Supreme Court refused a church’s request to enjoin application to it of California’s COVID-19 restrictions that limit attendance at religious worship services to 25% of building capacity or 100 attendees.  In South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., May 29, 2020), Justices Ginsburg, Breyer, Kagan, and Sotomayor voted to deny the injunction without writing an opinion. Chief Justice Roberts concurred in denying the injunction, filing a 2-page opinion explaining his vote. He said in part:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Justice Kavanaugh filed a 3-page dissenting opinion which was joined by Justices Thomas and Gorsuch, saying in part:

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings”…

Justice Alito dissented without filing or joining an opinion.

Earlier in the day, the Court had issued a brief order similarly denying an injunction against Illinois restrictions on worship services, but here because the challenged Illinois restrictions had expired the day before.. Full text of order in Elim Romanian Church v. Pritzker, (US Sup. Ct., May 29, 2020). SCOTUSblog reports on the decisions.

Family of 12 Challenges Virginia Restrictions On Worship Services Of Over Ten Persons

Suit was filed last week in a Virginia federal district court by a Catholic family of 12 challenging the provisions in Virginia Governor Ralph Northam's COVID-19 order that bars worship services with more than ten people. (The state is loosening these requirements in its reopening plan.) The complaint (full text) in Diaz-Bonilla v. Northam, (ED VA, filed 5/22/2020), alleges in part:

As a result of the Orders, the Diaz-Bonilla family is able to take their entire family of 12 to: restaurants to order food; any number of retail stores (such as Walmart and Target) that sell food or pharmaceuticals among a vast array of other items; electronics retailers; home improvement stores; lawn and equipment retailers, gas stations or convenience stores; pet stores;office supply stores; laundromats and dry cleaners; or even beer, wine, and liquor stores, if those businesses, deemed essential by the Governor’s order, adhere to certain social distancing requirements.

...However, under the Orders, the Diaz-Bonilla family cannot go to church or even invite a priest or fellow parishioner to their own home for religious purposes, no matter how strictly the family engages in social distancing and sanitization practices.

LifeSite News reports on the lawsuit.

Churches Challenge Oregon's COVID-19 Limits

Suit was filed yesterday in an Oregon federal district court challenging Oregon Governor Katherine Brown's COVID-19 order that limits the size of worship services.  The complaint (full text) in Edgewater Christian Fellowship v. Brown, (D OR, filed 5/26/20), alleges in part:

1. In Douglas County Oregon, Pastor Miller may be jailed for going to church with twenty-five other people on a Sunday morning, but can join those same people and more at a dine-in restaurant for Sunday lunch with no penalty. This is irrational and unconstitutional.

2. Under Governor Brown’s Executive Order 20-25 (the “Religious Assembly Ban”) Oregonians in Josephine County may workout in a gym or participate in fitness classes in spaces up to max capacity with social distancing, but if they hold or attend a religious service with twenty-six people observing social distancing in the very same room (even one with capacity to seat over 1000) they are subject to a $1,250 fine and jail time of up to thirty days.

3. Under the Religious Assembly Ban, a church auditorium could host a gym class of any size with social distancing, but the same auditorium is limited to twenty-five people for church services.

ADF issued a press release announcing the filing of the lawsuit. (See prior related posting.)

Church Challenges Colorado's Limitation On Size Of Worship Services

9News reports that on Monday a church in Ault, Colorado filed suit against the governor and other state officials challenging public health orders that limit church gatherings to ten people:

High Plains Harvest Church ... filed the lawsuit Monday in district court and argues that the health order violates their first amendment right to freedom of religion. They also allege that it violates freedom of speech and their right to equal protection under the law.

The complaint alleges in part:

Today in Colorado it is perfectly legal for hundreds of shoppers to pack themselves cheek by jowl into a Lowe’s. But if 50 people meet to worship God in a small rural church, they do so at the risk of being fined and imprisoned.

UPDATE: On May 29, the U.S. Department of Justice filed a Statement of Interest in support of Plaintiffs (full text).

Church Sues Challenging Nevada's COVID-19 Limits On In-Person Services

Suit was filed last Friday in a Nevada federal district court challenging the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order that limits in person church services.  The complaint (full text) in Calvary Chapel Dayton Valley v. Sisolak, (D NV, filed 5/22/2020) alleges in part:

Instead of prioritizing religious freedom, the Governor has moved “non-essential” secular businesses and activities to the front of the line and pushed churches towards the back. Incredibly, the Governor has allowed restaurants and food establishments to resume in-person, onsite dining at 50% capacity, allowed all retail establishments to open at 50% capacity, and has thrown open the doors of nail care salons, hair salons, and barber shops—businesses that the Governor’s own orders say “promote extended periods of public interaction where the risk of [Covid-19] transmission is high.”...

Yet the Governor insists on maintaining the Church Gathering Ban, refusing to allow churches and places of worship to open their doors to ten or more people under any circumstance.

ADF issued a press release announcing the filing of the lawsuit.