Court Says Drive-In Church Services Are Reasonable Compromise For COVID-19 Limits

In First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, (ND MS, April 24, 2020), a Mississippi federal district court created guidelines on the extent to which states or localities can limit church services in efforts to prevent the spread of COVID-19. The suit was brought by a church whose indoor Easter service was dispersed by police. The court had previously had before it a widely publicized case from Greenville, MS in which a city sought to ban even drive-in church services. (See prior posting.) In deciding the Holly Springs case, the court said in part:

For reasons which should be obvious, this court is considerably less sympathetic to claims by a church which sought to hold indoor church services involving at least thirty-five congregants than it is to the claims by the church in the Greenville case, which sought to hold services in which the congregants stayed in their vehicles with the windows closed....

In its brief, the Church insists that its members practice “social distancing” during indoor church services, but this strikes this court as being a rather hollow guarantee, given the inherent difficulties involved in policing meetings behind closed doors and the inherent medical uncertainties with regard to what a safe Covid-19 distance actually is in the context of individuals who may be sitting together in the same room for an hour or more....

In the court’s view, allowing drive-in church services involving congregants sitting in vehicles whose windows are closed represents the practical middle ground upon which concerns about religious freedom and the safety of the community may co-exist....

At the same time, this court wishes to be clear that it does not regard the practice of “drive-in” church services as being risk-free. While it may be imagined that many attendees of such services would be family members who have already been exposed to each other, that will not always be the case. Indeed, it seems quite likely that, as with regular church services, many such attendees will be elderly parishioners who require the assistance of friends or non-resident family members to take them to the service.... [T]he Covid-19 virus disproportionately kills elderly individuals, and it may therefore be assumed that, if the holding of such “drive-in” services becomes a nationwide trend, that a significant (and possibly large) number of deaths will result. This court believes that preachers and parishioners would be well advised to take this into consideration when deciding whether or not to hold or attend such services.

While this court therefore does not regard the public policy considerations in this context as being one-sided, the First Amendment right to Free Exercise of religion is sufficiently important that some reasonable accommodations must be made for it. This court concludes that the allowing of drive-in services, with windows closed or slightly cracked open, represents a reasonable accommodation in this context, and it finds a reasonable likelihood ... that allowing such drive-in services is legally required, under either state or federal law.

8th Circuit Upholds Arkansas COVID-19 Ban On Surgical Abortions

In In re Rutledge, (8th Cir., April 22, 2020), the U.S. 8th Circuit Court of Appeals issued a writ of mandamus ordering an Arkansas federal district court to dissolve its temporary restraining order that had invalidated the Governor's COVID-19 related ban on surgical abortions as part of a ban on non-medically necessary surgeries. The appeals court said in part:

Here, the ADH directive, pursuant to the Governor’s Executive Order, was issued in response to the impact of the COVID-19 pandemic in Arkansas. Accordingly, even assuming, arguendo, that the district court correctly interpreted the directive to be an outright ban on all pre-viability surgical abortions in Arkansas, the directive is not subject to constitutional challenge unless it “has no real or substantial relation to” the public health crisis, or “is, beyond all question, a plain, palpable invasion of” a woman’s right to elective abortion. Jacobson, 197 U.S. at 31.... Aside from summarily stating that its conclusion is consistent with Jacobson, the district court failed to apply that requisite framework and, thus, abused its discretion.

Daily Item reports on the decision.

Dioceses In Bankruptcy Challenge Ban On Access To COVID-19 Loans

Catholic News Agency reported yesterday that the Catholic dioceses of Rochester and Buffalo in New York filed suit on April 15 against the U.S. Small Business Administration challenging  denial of access to emergency loans under the recently enacted Paycheck Protection Program.

The $349 billion in emergency loans were part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law by President Trump on March 27.

The bill provided, among other things, short-term relief for small businesses and certain non-profits affected by the disruptions from the coronavirus (COVID-19) pandemic....

An SBA rule, however, stipulated that the funds would not go to bankruptcy debtors. Both the dioceses of Rochester and Buffalo have filed for bankruptcy in the past several months, after being named in hundreds of clergy sex abuse lawsuits filed under New York’ Child Victims Protection Act.

Another Suit Challenges Kentucky Ban On In-Person Church Services

A class-action lawsuit was filed last week in a Kentucky federal district court by three individuals who attended in-person Easter Sunday services at Maryville Baptist Church in Hillview, Kentucky. The in-person services violated Governor Andy Beshear's COVID-19 ban on mass gatherings.  State troopers placed notices on all cars in the church parking lot imposing a 14-day quarantine on those associated with the vehicle attending the service and others in their household. The complaint (full text) in Roberts v. Neace, (ED KY, filed 4/14/2020) alleges a violation of plaintiffs' free exercise rights, alleging in part:

Defendants’ prohibition of any in person church services, in the name of fighting Covid-19, is not generally applicable. There are numerous exceptions to the March 19, 2020 Order, such as an exception for factories, or attending establishments like shopping malls, where far more people come into closer contact with less oversight.

The suit also challenges the governor's travel ban. WTVQ News reports on the lawsuit. A different Kentucky federal district court has refused to restrain enforcement of the ban on mass gatherings. (See prior posting.)

Status of Temporary Abortion Bans

Catholic News Agency reviews the status of legal challenges to temporary bans on abortion in COVID-19 orders in various states, saying in part:

Eight states that have enacted temporary bans on abortion during the coronavirus pandemic are contending with legal challenges, and judges have prevented many of the temporary bans from coming into effect.

Judges have so far intervened to allow abortions in some form in Alabama, Arkansas, Oklahoma, Ohio, Texas, Iowa, Louisiana, and Tennessee, after the leaders of those states attempted to classify elective abortions as non-essential procedures.

In Iowa, abortion advocates had filed a lawsuit against the state’s order, but reached an agreement with the state outside of court before the lawsuit could progress.

In Alaska, a move by state officials to “delay” abortions until June has not been legally challenged; and in Mississippi, the state’s order banning all “elective” medical procedures also has not been challenged. Louisiana’s order to stop elective abortions is facing a lawsuit but has not been blocked.

Many states have suspended medical procedures deemed non-emergency or non-essential in an attempt to stem the spread of the virus among healthcare professionals, and to free up medical resources and hospital capacity.

Supposed Church Enjoined From Selling Bleach As Sacrament To Cure COVID-19

On Friday, in United States v. Genesis II Church of Health and Healing, (SD FL, April 17, 2020), a Florida federal district court issued a temporary restraining order against an organization claiming to be a church which was selling a powerful industrial bleach product as a cure for COVID-19 and other serious conditions.  As set out in the government's Complaint (full text) and its Motion for a Temporary Restraining Order (full text) filed April 16, the defendant told the FDA:

We can say cure, heal and treat as a Free Church. Don’t need you [sic] approval or authorization for a Church Sacrament.”... There will be NO corrective actions on our part … You have no authority over us! … Never going to happen.

ARS Technia gives additional background:

Genesis was selling MMS online and describes it as a sacrament. Attempting to purchase the product today leads to an error page that says, "We are currently in prayer!!! During these difficult and trying times, we are in prayer and seeking The LORD's wisdom & guidance. Please pray for us."

Genesis' main website calls the organization "a non-religious church" that aims to "restore health" to the world and which "was formed for the purpose of serving mankind and not for the purpose of worship."

Church's Challenge To Kentucky Ban on Mass Gatherings Is Rejected

In Maryville Baptist Church, Inc. v. Beshear, (WD KY, April 18, 2020), a Kentucky federal district court refused a request by a church and its pastor to issue a temporary restraining order against enforcing Governor Andy Beshear's ban on mass gatherings. The ban includes in-person religious services. The court said in part:

Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines...—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose....

Similarly unpersuasive is Plaintiffs’ contention that the orders violate their right to freely exercise their religion by discriminating against religious conduct. Again, the order temporarily prohibits “[a]ll mass gatherings,” not merely religious gatherings....  Religious expression is not singled out.

Louisville Courier-Journal reports on the decision.

Kansas Churches Get TRO To Protect Against Enforcement Of Congregant Number Limits

In First Baptist Church v. Kelly, (D KS, April 18, 2020), a Kansas federal district court granted two churches a temporary restraining order against enforcement of a provision in Kansas Governor Laura Kelly's COVID-19 executive orders that ban religious assemblies of more than ten congregants.  The TRO's however included specific safety precautions that the churches had accepted. In granting the TRO, the court said in part:

Plaintiffs have made a substantial showing that development of the current restriction on religious activities shows religious activities were specifically targeted for more onerous restrictions than comparable secular activities. The Governor previously designated the attendance of religious services as an “essential function” that was exempt from the general prohibition on mass gatherings. That designation has not been rescinded or modified, yet in EO 20-18 and EO 20-25 churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose – association for the purpose of worship – had been basically eliminated. For example, the secular facilities that are still exempt from the mass gathering prohibition or that are given more lenient treatment, despite the apparent likelihood they will involve mass gatherings, include airports, childcare locations, hotels, food pantries and shelters, detoxification centers, retail establishments (subject to the distancing and “essential function” purpose noted above), retail food establishments, public transportation, job centers, office spaces used for essential functions, and the apparently broad category of “manufacturing, processing, distribution, and production facilities.”...

ADF issued a press release announcing the grant of the TRO. (See prior related posting.)

Court Upholds New Mexico 5-Person Limit On Size of Church Gatherings

In Legacy Church, Inc. v. Kunkel, (D NM, April 17, 2020), a New Mexico federal district court refused to enjoin enforcement of the Order issued by the New Mexico Department of Health that bars gatherings of more than five people in houses of worship. Legacy Church, a megachurch, requires approximately 30 clergy and technical staff members to live stream its religious services. Summarizing its 100-page opinion, the court said:

The primary issues are: (i) whether Plaintiff Legacy Church, Inc.... is likely to succeed on the merits in demonstrating that Defendant Kathyleen M. Kunkel’s Public Health Emergency Order (4-11-20-PHO)..., which restricts places of worship from gathering more than five people within a single room or connected space, violates Plaintiff Legacy Church’s rights under the Free Exercise Clause of the First Amendment....; and (ii) whether Legacy Church is likely to succeed on the merits in demonstrating that the Order violates [its]... rights to peaceably assemble under the First Amendment. The Court concludes that: (i) the Order does not violate Legacy Church’s First Amendment religious freedom rights, because the Order is neutral and generally applicable; and (ii) the Order is a reasonable time, place, and manner restriction, and so does not violate Legacy Church’s First Amendment rights to assemble.

[Thanks to Marty Lederman via Religionlaw for the lead.] 

Churches Sue Challenging Kansas Stay-At-Home Order

Two churches filed suit in a Kansas federal district court yesterday challenging a provision in Gov. Laura Kelly's COVID-19 stay-at-home order (Executive Order 20-18) which bans religious services with more than ten congregants. The complaint (full text) in First Baptist Church v. Kelly, (D KS, filed 4/16/2020) contends that the order violates plaintiffs' 1st Amendment rights as well as their rights under the Kansas Preservation of Religious Freedom Act.  ADF issued a press release announcing the filing of the lawsuit. The complaint alleges in part:

While EO 20-18 carves out broad exemptions for 26 types of secular activities from this gathering ban, including, bars and restaurants, libraries, shopping malls, retail establishments, and office spaces the order singled out “churches and other religious services or activities” to expressly prohibit any type of gathering of more than ten non-performing individuals, regardless of whether social distancing, hygiene, and other efforts to slow the spread of COVID-19 were practiced.

(See prior related posting.)

Justice Department Backs Church Objections To Discriminatory COVID-19 Bans

On Tuesday, the U.S. Attorney General William Barr issued a statement (full text) on Religious Practice and Social Distancing. He said in part:

In exigent circumstances, when the community as a whole faces an impending harm of this magnitude, and where the measures are tailored to meeting the imminent danger, the constitution does allow some temporary restriction on our liberties that would not be tolerated in normal circumstances. 

But even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers.  Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings.  Religious institutions must not be singled out for special burdens.

He also indicated that the Department of Justice had filed a Statement of Interest (full text) Temple Baptist Church v. City of Greenville, a Mississippi church's challenge to a ban on drive-in church services. (See prior posting.) Subsequently Greenville's mayor indicated that the city would allow drive-in services as long as families stay in their cars with the widows rolled up. (WREG News).

Suit Challenges Chattanooga's Ban On Drive-In Church Services

Suit was filed on Thursday in a Tennessee federal district court challenging Chattanooga, Tennessee's COVID-19 ban on drive-in church services.  The complaint (full text) in Metropolitan Tabernacle Church v. City of Chattanooga, (ED TN, filed 4/16/2020), alleges in part:

[A]ccording to the City, you can buy a hamburger and sit in your car at a drive-in restaurant, or sit in the parking lot of a retail establishment with hundreds of other vehicles with your windows rolled down, but you can’t sit in your car at a drive-in church service with your windows rolled up....

Plaintiffs sincerely believe that the Bible teaches the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth....

The City’s drive-in church ban targets, discriminates against, and shows hostility towards churches, including Plaintiffs.

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

Suit Challenges Enforcement of COVID-19 Orders Against Pro-Life Activists

Suit was filed today in a North Carolina federal district court seeking to enjoin city of Greensboro and Guilford County officials from applying COVID-19 orders to prevent anti-abortion activists from walking and praying in front of abortion clinics.  The complaint (full text) in Global Impact Ministries, Inc. v. City of Greensboro, (MD NC, filed 4/14/2020) contends:

The County has passed, and the City is enforcing, regulations limiting the operations of certain businesses and activities, and imposing social distancing requirements in response to the recent pandemic, but those requirements have been applied in an inconsistent and unconstitutional manner with respect to peaceful conduct and charitable religious activities in Greensboro. 

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

Church Challenges To COVID-19 Orders Proliferate

Suits challenging COVID-19 orders that ban group church services are proliferating.  Sacramento Bee reported yesterday:

A group of Inland Empire pastors is suing California Gov. Gavin Newsom in federal court, alleging that his administration is “criminalizing the free exercise of religion” with stay-at-home directives that have prevented people from attending church services....

One of the plaintiffs is Dean Moffatt, a Riverside County pastor who was fined $1,000 for holding a Palm Sunday church service, according to the complaint filed.

KRQE News reported yesterday:

An Albuquerque [New Mexico] megachurch is now suing the state claiming the governor violated the first amendment that protects the freedom of religion. Specifically, it’s focused on the church’s Easter Sunday service and the number of people it takes to live stream to its congregation....

[Pastor Steve] Smothermon of Legacy Church filed suit requesting a temporary restraining order but also a permanent injunction affording them the same restrictions as local essential retailers, limiting capacity to 20%. Smothermon says to hold yesterday’s service they would have a worship team, a band, the pastor and technical staff. A group of about 30 people. Therefore, conducting the live-streamed services would immediately violate the governor’s order to limit gatherings to no more than five people.

WAVE News reported yesterday:

 A Kentucky church whose members defied Gov. Andy Beshear’s executive order not to gather in groups now plans to file a federal lawsuit claiming its constitutional rights were violated.

The Maryville Baptist Church is at the center of the debate, after about 50 members attended an Easter service in person.

Kentucky State Police troopers were ordered to take down the license plates of those who attended, threatening to quarantine them.

The church’s attorney, Matthew Staver, said the lawsuit is because the church was targeted.

Suit Challenges City's Ban On Drive-In Church Services

On Friday, a church in Greenville, Mississippi filed suit in federal district court challenging the city's COVID-19 closure order insofar as it bans drive-in church services held on church property where the service is broadcast over low-power FM radio to individuals sitting in their cars. The complaint (full text) in Temple Baptist Church v. City of Greenville, (ND MS, filed 4/10/2020) contends that the order violates plaintiffs' rights of free exercise, free speech and freedom of assembly, their due process rights, and conflicts with the Mississippi governor's statewide order.  ADF issued a press release announcing the filing of the lawsuit.

Kansas Supreme Court Says Legislative Attempt To Revoke Governor's COVID-19 Order Was Invalid

In Kelly v. Legislative Coordinating Council, (KA Sup. Ct., April 11, 2020), the Kansas Supreme Court upheld the effectiveness of Kansas Governor Laura Kelly's executive order (full text) which, among numerous other things, bars gatherings of more than ten people in churches and other houses of worship. (The order does allow more than ten individuals if they are conducting or performing the religious service, so long as they follow safety protocols including six-foot distancing.)  The court held that attempts by the Legislative Coordinating Council to revoke the governor's executive order were invalid. The court said that its decision does not rule on "whether Executive Order 20-18 was a legally valid or constitutional exercise of the Governor's authority, despite its limitation on religious gatherings." NPR reports on the decision.

5th Circuit Upholds Part of TRO Issued Against Texas COVID-19 Abortion Ban

As previously reported, on April 7, the US. 5th Circuit Court of Appeals permitted Texas Gov. Gregg Abbott's COVID-19 related ban on elective abortions to go into effect. After additional skirmishing that led to a new temporary restraining order by the district court, on April 9 in In re Abbott, the 5th Circuit by a 2-1 vote upheld the TRO insofar as it permitted abortions for patients who would be past the 22-week limit for abortions by April 22, but otherwise stayed the TRO pending consideration of the case by the 5th Circuit.  Judge Dennis dissented saying he would not have stayed any part of the district court's TRO.  AP reports on these developments.

Court Allows Drive-In Church Services For Easter In Kentucky; In-Person Attendees Face Quarantine

In On Fire Christian Center, Inc. v. Fischer, (WD KY, April 11. 2020), a Kentucky federal district court issued a temporary restraining order barring the city of Louisville from enforcing a COVID-19 related ban on drive-in Easter services that were planned by a Louisville church. The court began its opinion as follows:

On Holy Thursday, an American mayor criminalized the communal celebration of Easter.

That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter.

The Mayor’s decision is stunning.

And it is, “beyond all reason,” unconstitutional.

The court explained in part:

Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs – including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.”That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”

The day before the decision was issued, Kentucky's attorney general issued a Statement (full text) saying in part:

We are aware that some Kentucky jurisdictions are discussing a prohibition of drive-in church services for the upcoming Easter holiday.  As long as religious groups and worshippers are complying with current Centers for Disease Control (“CDC”) recommendations for social distancing to slow the spread of COVID-19, we see no problem with these drive-in services occurring.

Religious organizations should not be treated any differently than other entities that are simultaneously conducting drive-through operations, while also abiding by social distancing policies....

This leniency does not, however, extend to in-person church services. As reported by WHAS News, Kentucky's governor says that anyone attending mass gatherings, including church services, this weekend, will be required to be quarantined for 14 days. Gov. Andy Beshear said the state record license plates those attending such gatherings and will give the information to local health departments who will then order quarantines.

UPDATE: On April 21, the Louisville Courier Journal reported:

On Fire Christian Church has reached an agreement with Louisville Mayor Greg Fischer and city officials to continue to hold drive-in services while abiding by social distancing guidelines set forth by the Centers for Disease Control and Prevention.

5th Circuit: Texas Elective Abortion Ban During COVID-19 Emergency Is Upheld

In In re Greg Abbott, (5th Cir., April 7, 2020), the U.S. 5th Circuit Court of Appeals issued a writ of mandamus that allowed the portion of Governor Greg Abbott's COVID-19 emergency order limiting elective abortion procedures to go into effect. All abortions other than those medically necessary to preserve the life or health of the mother are banned in order to preserve medical resources and limit the spread of coronavirus. Relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts, the court said in part:

The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” ... Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.... At the same time, however, courts may not second-guess the wisdom or efficacy of the measures....

Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis.... Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its benefits in those situations.

Judge Dennis filed a dissenting opinion. Texas Tribune reports on the decision.

SBA Says Churches and Other Religious Organizations Are Now Eligible For SBA Loans

On April 3, the Small Business Administration announced that faith-based organizations, including houses of worship, are eligible to receive SBA loans regardless of whether they provide secular social services. (FAQ Document) (Press Release).  This applies both to the Paycheck Protection Program designed to keep small business workers employed, and to the Economic Injury Disaster Loan Program which provides small businesses and non-profits working capital. The FAQ Document says in part:

...[N]o otherwise eligible organization will be disqualified from receiving a loan because of the religious nature, religious identity, or religious speech of the organization. The requirements in certain SBA regulations— 13 C.F.R. §§ 120.110(k) and 123.301(g)—impermissibly exclude some religious entities. Because those regulations bar the participation of a class of potential recipients based solely on their religious status, SBA will decline to enforce these subsections and will propose amendments to conform those regulations to the Constitution. Although 13 C.F.R. § 120.110(a) states that nonprofit entities are ineligible for SBA business loans (which includes the PPP program), the CARES Act explicitly makes nonprofit entities eligible for the PPP program and it does so without regard to whether nonprofit entities provide secular social services.