9th Circuit: Church Loses Challenge To California COVID-19 Order

In South Bay United Pentecostal Church v. Newsom, (9th Cir., May 22, 2020), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, refused to enjoin California's and San Diego County's COVID-19 orders as they apply to in-person religious services. The majority, in a brief opinion, said in part:

Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

Judge Collins filed a lengthy dissent, saying in part:

By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services -- the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct.”...

Even if the Reopening Plan were not facially discriminatory, it would still fail Lukumi’s additional requirement that the restrictions be “of general applicability.” 508 U.S. at 531.

Under California’s approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one’s conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a “generally applicable” prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, “religious services” have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed “generally applicable.”

ABC News reports on the decision. The church filed an emergency application for an injunction (full text) with the U.S. Supreme Court.

5th Circuit Enjoins Enforcement of City's COVID-19 Order Against Church Pending Appeal

Five days after a Mississippi federal district court, in an opinion critical of plaintiff's position, refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services (see prior posting), the U.S. 5th Circuit Court of Appeals in First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (5th Cir., May 22, 2020), granted an injunction pending appeal of enforcement of the city's COVID-19 Orders against the church. However the grant came with conditions, reflecting what appears to be ongoing animosity between the church and city officials, and somewhat competing Orders by the state and the city. In granting the injunction, the court said in part:

We do this upon the assurances by the Church that it will “satisf[y] the requirements entitling similarly situated businesses and operations to reopen.” In this vein, we refer the Church to the Governor’s new “Safe Worship Guidelines for In-Person Worship Services,” which appear similarly rigorous to the City’s requirements for reopening businesses but are tailored to church operations. These guidelines, if implemented in the spirit of the City’s orders, may help the Church abide by its safety pledge during this intervening period while the district court considers the injunction request and while the City continues the ongoing process of evaluating and revising its orders related to COVID-19.

In a concurring opinion, Judge Willett added considerable background:

The First Pentecostal Church of Holly Springs was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet you Stay home Now YOU HYPOKRITS.”

The City mentions the church burning in its latest brief, but in a manner less commendable than condemnable. One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime’s depravity, the City seized advantage, insisting that the Church’s First Amendment claim necessarily went up in smoke when the church did....

This argument is shameful.

Trump Presses For Reopening of Houses of Worship

In remarks today (full text) from the Blue Room balcony to ceremony honoring veterans and POW/ MIA's, President Trump said in part:

Today, I just spoke to CDC.  We want our churches and our places of faith and worship; we want them to open.  And CDC is going to be — I believe today they’re going to be issuing a very strong recommendation.  And I’m going to be talking about that in a little while.  But they’re going to be opening up very soon.  We want our churches open.  We want our places of faith, synagogues — we want them open.  And that’s going to start happening.  I consider them essential, and that’s one of the things we’re saying.  We’re going to make that essential.

You know, they have places “essential” that aren’t essential, and they open.  And yet the churches aren’t allowed to open and the synagogues and — again, places of faith — mosques, places of faith.  So that’s going to — see that — you’re going to see that.

Later, at a White House press conference, the President again spoke about reopening of houses of worship. CNBC reports on the press conference:

President Donald Trump on Friday demanded that governors reopen churches, synagogues and mosques “right now,” and threatened to “override” state leaders’ restrictions if they do not do so by the weekend....

Trump said it was an “injustice” that some state leaders have allowed “liquor stores and abortion clinics” to stay open amid the Covid-19 pandemic while closing houses of worship.

“It’s not right,” Trump said. “I’m calling houses of worship essential.”

“If there’s any question, they’re going to have to call me, but they’re not going to be successful in that call,” Trump said of state leaders.

“The governors need to do the right thing and allow these very important essential places of faith to open right now, for this weekend,” Trump said.

“If they don’t do it, I will override the governors.” ...

White House press secretary Kayleigh McEnany, when asked what authority allows Trump to override a governor’s rules, did not provide a specific provision.

Instead, she said “the president will strongly encourage every governor to allow their churches to reopen – and boy, it’s interesting to be in a room that desperately wants to seem to see these churches and houses of worship stay closed.”

UPDATE: Here is the CDC's Interim Guidance for Communities of Faith.

Pastor Sues Over Delaware COVID-19 Restrictions On Church Services

According to the Delaware News Journal, on Tuesday Rev. Christopher Bullock, pastor of  Canaan Baptist Church in New Castle, filed suit against Delaware Governor John Carney over COVID-19 limits on church services. The suit was filed a day after the Governor loosened restrictions somewhat. According to the paper:

[G]atherings must be limited to 30% of the fire code capacity and strict social distancing must be maintained. In-person services were previously limited to 10 people at a time. 

Also, service times cannot run longer than one hour and must be staggered for the area to be cleaned. 

These guidelines can be problematic for some churches, said Bullock, who added that some African American preachers take about an hour to get started. He also pointed out that depending on the size of the temples and congregations, worshipers might not be able to attend God's House as often as they choose.  

"It is too intrusive. We know how to take care of ourselves," he said. "We don't need the government to tell us what to do, how long to do it and why to do it."

Local Wisconsin COVID-19 Orders Challenged On 1st Amendment Grounds

A lawsuit was filed this week in a Wisconsin federal district court against ten local public health officers and a number of other local and state officials seeking to prevent enforcement of local COVID-19 Emergency Orders after the Wisconsin Supreme Court invalidated a statewide emergency order because it exceeded legislative authority and was improperly adopted. (See prior posting.) This week's lawsuit was brought by seventeen plaintiffs, one of whom is a pastor.  The complaint (full text) in Yang v. Powers, (ED WI, filed 5/20/2020) alleges in part that the local orders violate plaintiffs' free exercise rights and the Establishment Clause, as well as their freedom of assembly and equal protection rights. Urban Milwaukee reports on the lawsuit.

CDC Withholds Guidance On Reopening Of Churches

Washington Post reported yesterday:

The CDC this week issued a detailed road map for reopening schools, child-care facilities, restaurants and mass transit. On Tuesday night, the agency issued additional guidance in the form of “health considerations” for summer camps, including overnight camps, and youth sports organizations and colleges.

But there are currently no plans to issue guidance for religious institutions, according to three administration officials who spoke on the condition of anonymity to discuss policy decisions....

In the end, the decision to hold back reopening guidance for religious institutions came from some White House and coronavirus task force officials who did not want to alienate the faithful and believed that some of the proposals, such as limits on hymnals, the size of choirs or the passing of collection plates, were too restrictive, according to two administration officials.

Maryland Stay-At-Home Orders Upheld Over Free Exercise and Other Challenges

In Antietam Battlefield KOA v. Hogan, (D MD, May 20, 2020), a Maryland federal district court rejected several constitutional challenges to Maryland Governor Larry Hogan's COVID-19 stay-at-home orders. Among the plaintiffs were several pastors and a deacon who complain that the orders bar them from holding religious services with more than 10 people, and from attending weddings and funerals in person. Rejecting plaintiffs' free exercise claims, the court said in part:

This court agrees with the reasoning of the many courts that have found similar orders to be neutral and generally applicable.... The Governor’s order is neutral because it proscribes conduct (gatherings of more than 10 people) without regard to whether that conduct is religiously motivated or not. There is no indication that the order is meant to target conduct because of its religious motivation.

The order is also generally applicable. The plaintiffs argue that the order is underinclusive because it still allows some businesses to “accommodate large crowds and masses of persons,” such as Lowe’s and Walmart.... But plaintiffs have not shown that these activities are comparable to religious services. First, these businesses are part of the critical infrastructure, according to the U.S. Department of Homeland Security’s Cybersecurityand Infrastructure Security Agency.... and, unlike religious services, they cannot operate remotely...

Second, the plaintiffs have not shown that allowing essential businesses to remain open is “nonreligious conduct that endangers these interests in a similar or greater degree than” religious services....

Daily Record reports on the decision.

DOJ Says California Is Discriminating Against Places of Worship In Reopening Plan

As reported by the Los Angeles Times, the Department of Justice Civil Rights Division yesterday sent a letter (full text) to California Governor Gavin Newsom complaining about discriminatory treatment of houses of worship in the state's COVID-19 Reopening Plan. The letter says in part:

Places of worship are not permitted to hold religious services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are permitted to operate with social distancing....

We believe... that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.

France's Council of State Orders Lifting of COVID-19 Ban On Worship Services

Yesterday, France's highest court, the Council of State, ruled that within 8 days the government must lift its COVID-19 ban on gatherings at houses of worship. Currently only funerals, with no more than 20 people in attendance may be held in houses of worship.  Reporting on the decision, Euronews said:

The judge highlighted that the government authorised public gatherings of up to 10 people in other settings and that as such the blanket ban "is disproportionate to the objective of preserving public health."

The ruling adds that freedom of worship is a fundamental right which "includes among its essential components the right to participate collectively in ceremonies, in particular in places of worships" and that the government's decree "constitutes a serious and manifestly unlawful interference with it".

It called on the government to take measures that are "strictly proportionate to the health risks incurred".

[Thanks to Eric Rassbach via Epidemiclaw for the lead.]

Oregon Trial Court Enjoins Enforcement of State's COVID-19 Orders In Suit By Churches

In Elkhorn Baptist Church v. Brown, (OR Cir. Ct., May 18. 2020), an Oregon state trial court granted a preliminary injunction against further enforcement of the governor's COVID-19 emergency orders in a suit brought by 16 churches and a number of other plaintiffs who complain that the order prevents them from holding church services.  The court held that under the relevant legislation invoked by the governor, a state of emergency could be declared only for up to 28 days.

[W]hen the Governor utilized the provisions of ORS 433.441 in her executive order, she triggered all the provisions of ORS 433.441 including the time restrictions in ORS 433.441(5). By doing so, the executive order became null and void beyond the maximum 28-day time period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are also null and void....

The Governor has an enormous responsibility to protect the lives of the citizens of our state balanced against the citizens’ constitutional rights to freedom of religion which includes how he or she chooses to worship. The Governor’s orders are not required for public safety when Plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the Governor have been authorized to do.

Reporting on the decision, The Oregonian says that the governor's office has filed an appeal with the Oregon Supreme Court.

UPDATE: According to a statement on Twitter by Governor Brown, late last night the Oregon Supreme Court reinstated her emergency orders while the state Supreme Court hears arguments in the appeal.

British Government Task Force To Develop Rules For Reopening of Houses of Worship

In Britain last Friday, the Ministry of Housing, Communities and Local Government announced a new interfaith task force to develop a plan for the phased and safe reopening of places of worship. According to the release:

No place of worship will be able to reopen before a final decision by the government and the accompanying change to the legal position in the published regulations. Faith organisations will be able to reopen at a slower pace if they wish.

[Thanks to Law & Religion UK for the lead.]

Court Strikes Down North Carolina Limits On Worship Services

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor's COVID-19 order that limits indoor worship services to ten people. Saying that "There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.," the court continued:

The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.

News & Observer reports on the decision.

Louisiana Limits On Church Services Upheld

In Spell v. Edwards, (MD LA, May 15, 2020), a Louisiana federal district court upheld the validity of the Louisiana governor's COVID-19 restrictions on church services.The court said in part:

At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person.... Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering.... 

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

(See prior related posting).

Court Is Critical of Church's Litigation Tactics In Challenge To COVID-19 Order

In First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (ND MS, May 14, 2020), a Mississippi federal district court refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services.  Both the state and the city have issued  COVID-19 orders that are similar, but the church views the state as being more friendly to religious exercise.  The court, in an  opinion critical of the church's continued litigation, said in part:

This court has found the City to be quite accommodating of the free exercise of religion in this case, including by quickly amending its ordinance to expressly grant plaintiff the right to conduct the drive-in services which it previously requested. Nevertheless, plaintiff appears to regard the Governor, but not the City, as a friend of the exercise of religion, and, that being the case, this court can discern little point in the City choosing to increase its legal exposure by adopting its own executive orders relating to church services, when they are so similar to the Governor’s. The City’s choice of whether or not to adopt the Governor’s orders will be moot if it is determined that the Governor’s orders pre-empt the City’s, but this court raises this as one potential step to bridge the gap of mistrust which clearly exists between the parties in this case.....

Plaintiffs’ briefing on this issue heightens this court’s impression that this entire lawsuit is nothing more than a deeply misguided attempt on their part to gain permission to endanger their own lives and those of their fellow community members. While this court does not rule out the possibility that indoor church services could be held at acceptable risk by a responsible church if sufficient precautions were taken, it has grave concerns whether the plaintiff in this case is sufficiently aware of the gravity of these matters to enable it to do so....

This court observes that plaintiff has made a habit in this litigation of taking the time to carefully prepare briefs (its brief in support of its current motion is 26 pages long) and then demanding an immediate ruling from this court, with opposing counsel left to make hurried arguments in a telephonic hearing. This is a fundamentally unfair process, and this court will no longer tolerate it.

Churches Sue Over North Carolina COVID-19 Order

Two churches and an organization representing a number of churches filed suit yesterday in a North Carolina federal district court seeking to enjoin enforcement of  North Carolina Governor Roy Cooper's COVID-19 Order banning indoor religious worship services comprised of more than ten people. The complaint (full text) in Berean Baptist Church v. Cooper, (ED NC, filed 5/14/2020), alleges that the governor's orders are unconstitutional:

because they treat religious gatherings less favorably than similar secular gatherings, virtually banning religious assembly, are not narrowly tailored, and do not permit less restrictive means to achieve the government’s interest without burdening Plaintiffs’ rights as guaranteed by the U.S. Constitution’s First Amendment.

Plaintiffs also filed a Memorandum in Support of their motion for a TRO (full text). WSOC TV reports on the lawsuit.

Churches Fail In Challenge To Illinois COVID-19 Limits

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, May 13, 2020), an Illinois federal district court refused to grant a temporary restraining order or preliminary injunction to two churches challenging the governor's COVID-19 limitation on worship services. The governor's order requires social distancing and limits worship services to ten people.  The court said in part:

[B]ecause Jacobson [v. Massachusetts] is implicated by the current health crisis, and because the Order advances the State’s interest in protecting its citizens from the pandemic, the court concludes that plaintiffs have a less than negligible chance of success on their constitutional claims.  Moreover, even if Jacobson’s emergency crisis standard does not apply, plaintiffs have failed to show any likelihood of success under traditional First Amendment analysis. ...

[P]laintiffs have provided no evidence that the Order targets religion. They point to the Order’s exemptions for essential businesses that may host more than ten people and argue “if large gatherings at liquor stores, warehouse supercenters, and cannabis stores are not prohibited – and distancing and hygiene practices are only required to the greatest extent possible – even though endangering citizens (or not) to an equal degree, then it is obvious religious gatherings have been targeted for discriminatory treatment.” The court disagrees.

Gatherings at places of worship pose higher risks of infection than gatherings at businesses.

WLS TV reports on the decision.

Hair Salon Raises Free Exercise Claims To Wisconsin COVID-19 Order As State Supreme Court Invalidates It On Other Grounds

As reported by WBAY, a suit was filed Tuesday in a Wisconsin federal district court challenging the state's "Safer at Home" order on free exercise and free speech grounds.  Plaintiff Jessica Netzel operates a faith-based hair salon.  According to the news report:

The lawsuit states Kingdom Kuts "as the name implies, is a ministry of Plaintiff Ms. Netzel. Scriptural references are placed about the business. Ms. Netzel sincerely believes that she is to share her faith with others through her work at Kingdom Kuts."

The suit also says that the order prevents plaintiff from participating in in-person worship services.

UPDATE: Here is the full text of the complaint in Kindom Kuts v. Netzel, (ED WI, filed 5/12/2020). [Thanks to Marty Lederman via Religionlaw.]

Yesterday in Wisconsin Legislature v. Palm,( WI Sup. Ct., May 13, 2020), the Wisconsin Supreme Court in a 4-3 decision held that the state's Safer at Home order is unenforceable because it exceeds statutory authority and was not adopted in accordance with required rulemaking procedures.

U.N. Conference On Role of Religious Leaders In Addressing COVID-19 Crisis

Yesterday, the United Nations General Assembly held a video conference on The Role of Religious Leaders In Addressing the Multiple Challenges of COVID-19. Here is background on the conference and a list of speakers. Here is a video of the entire 3-hour Conference. In his remarks (full text), U.N. Secretary General António Guterres said in part:

[W]e continue to see conflicts rage in many places — along with a rise in ethno-nationalism, stigma and hate speech targeting vulnerable communities and exacerbating suffering.  Meanwhile, extremists and radical groups are seeking to exploit eroding trust in leadership and feed on people’s vulnerability to serve their own ends.

 I ask faith leaders to actively challenge inaccurate and harmful messages, and encourage all communities to promote non-violence and reject xenophobia, racism and all forms of intolerance....

 Across the globe we are seeing an alarming increase in violence against women and girls as this pandemic spreads.... I appeal to religious leaders to categorically condemn such acts....

 [A]s we fight the spread of disinformation and misinformation, I ask religious leaders to leverage your networks and communication capacities to support governments in promoting WHO-recommended public health measures — from physical distancing to good hygiene — and to ensure that faith-based activities, including worship, religious ceremonies and burial practices, comply with these measures.

Free Exercise Challenge To St. Louis COVID-19 Order Dismissed On Standing Grounds

In Hawse v. Page, (ED MO, May 11, 2020), a Missouri federal district court held that plaintiffs lack standing to bring a free exercise challenge to the St. Louis County's COVID-19 order limiting religious gatherings to ten persons. The court said in part:

Here, Plaintiffs state that they are bringing a "facial challenge" to the constitutionality of the Order.... Plaintiffs allege that they are Christians and that Sunday church services are important to their worship.....Plaintiffs allege that their churches are large enough to allow social distancing and have hand sanitizer and other hygiene products to allow for safe gatherings.... Plaintiffs, however, do not identify their religious denominations, organizations, or specific places of worship in the Complaint. Plaintiffs do not allege when their respective churches closed or what caused them to close. Plaintiffs do not allege that their large church gatherings were suspended because they were unlawful under the Order, rather than in response to the general COVID-19 public health crisis....  Thus, based upon the Complaint, the Court is unable to discern the specific impetus for closure of Plaintiffs' churches and, likewise, what would enable their churches to reopen. 

The court however refused to dismiss plaintiffs' due process challenge at this time, asking for further briefing on the issue.

Maine Ban On Religious Gatherings Over 10 Persons Is Upheld

In Calvary Chapel of Bangor v. Mills, (D ME, May 9, 2020), a Maine federal district court refused to issue a temporary restraining order against Maine Governor Janet Mills' COVID-19 order which prohibits religious gatherings of more than ten people. The court rejected plaintiff's free exercise, Establishment Clause and free speech challenges to the Order.