Early Supreme Court Review Sought In Church's Challenge To Nevada COVID-19 Limits

In July, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending appeal to a church that was challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting). A Nevada federal district court had upheld the governor's Order. Arguments are scheduled next month in the church's appeal to the 9th Circuit. However, last week the church filed a petition (full text) asking the U.S. Supreme Court to grant review in the case before it is heard by the 9th Circuit. Calvary Chapel Dayton Valley v. Sisolak, (certiorari filed, 11/5/2020). ADF issued a press release announcing the filing.

Suit Challenging Louisiana COVID-19 Limits On Churches Fails

 In Spell v. Edwards, (MD LA, Nov. 10, 2020), a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. The court held that plaintiffs' claim for injunctive relief is moot because the specific Proclamation they challenge has expired. The court also dismissed plaintiffs' claim for damages, saying in part:

Governor Edwards's Proclamations have always treated comparable secular institutions similarly to comparable religious institutions.... 

To the extent that Plaintiffs argue that any restrictions on their right to gather violate the U.S. Constitution, they are clearly incorrect.

The Advocate reports on the decision.

2nd Circuit Denies Injunction Pending Appeal Of NY Governor's Cluster Zone Limits On Houses of Worship

In Agudath Israel of America v. Cuomo, (2d Cir., Nov. 9, 2020), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision refused to grant an injunction pending appeal to a group of Jewish synagogues and to the Catholic Diocese of Brooklyn in a case challenging New York Gov. Andrew Cuomo's restrictions on spots in which clusters of COVD-19 cases have broken out. (See prior posting.) The majority said in part:

The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings....

Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings.

Judge Park dissented, saying in part:

Here, the executive order does not impose neutral public-health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. Such targeting of religion is subject to strict scrutiny.

Hamodia reports on the decision.

Court Upholds New York's COVOD-19 Cluster Action Initiative

In Soos v. Cuomo, (ND NY, Oct. 30, 2020), a New York federal district court refused to enjoin New York's Cluster Action Initiative begun in early October that targets specific areas for enhanced COVID-19 restrictions.  Houses of Worship were a specific concern of Gov. Cuomo in issuing the executive order creating the Initiative. The court said in part:

To find in plaintiffs' favor under these circumstances would be to second-guess the State's medical experts and scientific and public health findings with respect to what constitutes an "essential" business, which would run afoul of Jacobson and its progeny.... Indeed, the State has arguably shown that, according to their medical and public health experts, religious gatherings pose a unique risk to the spread of COVID-19, and, thus, "although the [Initiative] establishes rules specific to religious gatherings, it does so because they are gatherings, not because they are religious."... 

Accordingly, for purposes of the pending motion, the court is satisfied that the Initiative was guided by science and data, and not a mere desire to target religion, and thus, the Initiative does not exceed the "broad limits" described in Newsom. Additionally, plaintiffs' claims are unlikely to succeed on the merits even applying strict scrutiny review because the injunction is not in the public interest....

Colorado Limits On Worship Services Enjoined

In Denver Bible Church v. Azar, (D CO, Oct. 15, 2020), a Colorado federal district court granted a preliminary injunction barring enforcement against two churches of portions of Colorado's COVID-19 restrictions on worship services. The court said in part:

Plaintiffs are likely to succeed on the merits of their free exercise claim for a simple reason. Having decided that the risk of allowing various activities to be exempt from the strictest Safer at Home rules is justified on the basis that those activities are critical and necessary, the State cannot decide for Plaintiffs what is critical and necessary to their religious exercise. With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic.... So Colorado’s failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment’s guarantee of the free exercise of religion....

Note well that the implications of this conclusion aren’t as broad as some might hope or others might fear. Plaintiffs will still be subject to the neutrally applicable rules and prohibitions in Public Health Order 20-35. They will, for example, have to enforce sanitization requirements, maintain social distancing between individuals, and not permit shaking hands.... All in all, based on their bona fide religious need to do so, Plaintiffs will be allowed to open their sanctuaries subject to the same capacity, social distancing, and masking rules that are applicable to other critical businesses, and will be able to permit congregants to remove their masks if and when it is necessary to carry out their religious exercise.

CBSN Denver reports on the decision.

More Litigation Developments In Religious Institution Challenges To COVID-19 Restrictions

Suit was filed last week in an Oregon federal district court challenging Oregon's COVID-19 Orders and guidance that grant small public schools, but not small private or religious schools, an exemption from the ban on in-person instruction. The complaint (full text) in Hermiston Christian Center v. Brown, (D OR, filed 10/16/2020) asserts various 1st and 14th Amendment claims, including the charge that the Orders unlawfully target religious schools. ADF issued a press release announcing the filing of the lawsuit.

Becket announced that it filed suit last week in Lebovits v. Cuomo, (ND NY, filed 10/15/2020). The suit is brought on behalf of two young women and their Orthodox Jewish school.  It challenges New York City's lock down in zip codes in which there are micro-clusters of COVID-19.

Amistad Project announced that it filed suit over the weekend in Libertas Classical Ass'n v. Whitmer, (WD MI), on behalf of a K-12 Christian school in Hudsonville, MI. According to the press release:

... [T]he Whitmer Administration has made repeated, unreasonable demands on the school since September 4, including that kindergarteners always wear masks while in school, including during chapel and outdoor recess....

This violates the First Amendment rights of assembly and religion for the school's 265 students, as well as parents and staff.

In Maryville Baptist Church, Inc. v. Beshar, (6th Cir., Oct. 19, 2020), the U.S. 6th Circuit Court of Appeals refused to allow a church and its congregants to obtain an appellate court ruling on a dispute that had essentially become moot.  In March 2020, Kentucky Governor Andy Beshear had barred all religious services as part of the state's response to the COVID-19 pandemic. Federal courts preliminarily enjoined the ban from going into effect and subsequently the Governor ended the ban. Liberty Counsel issued a press release announcing the decision.

In Gish v. Newsom, 2020 U.S. Dist. LEXIS 192714 (CD CA, Oct. 9, 2020), a California federal district court refused to reconsider its decision upholding the state's COVID-19 Orders that limit indoor religious services.

New York's Zip-Code Targeted COVID-19 Limits Are Upheld

In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, Oct. 16, 2020), a New York federal district court refused to grant a preliminary injunction to the Diocese in its challenge to New York's COVID-19 cluster action initiative that targets specific zip codes. A TRO had previously been denied. (See prior posting.) Rejecting plaintiff's arguments, the court said in part:

[T]he excerpts from the Governor's public comments do not transform a neutral law into a religiously targeted one. The evidence shows that Governor Cuomo is clearly aware and concerned that EO 202.68 burdens religious practice, and particularly the religious practice of Orthodox Jews, but awareness that the burden of a law falls unequally does not establish that the law was designed to target religious groups. Indeed, as the Governor reportedly told a group of Jewish community leaders, although the policy is a "very blunt" instrument, its purpose is to "get the numbers down in the zip codes." ... The court reads the Governor's statement to say that EO 202.68 is targeted temporarily at all gatherings in the areas where there are spikes in COVID-19 positivity rates, not at religious gatherings in particular.

Church's Challenge To California COVID-19 Limits Rejected Again

 In South Bay United Pentecostal Church v. Newsom, (SD CA, Oct. 15, 2020), a California federal district court refused to grant a preliminary injunction to a church that challenged California's current COVID-19 restrictions on worship services. The state limits plaintiffs’ indoor worship services to the lesser of 25% of building capacity or 100 people. The church had earlier unsuccessfully appealed a challenge to an earlier version of state restrictions all the way to the U.S. Supreme Court. (See prior posting.) According to the district court:

Plaintiffs now argue ... that California’s “scientific pronouncements” are “largely baseless,” and that by “all reasonable scientific measurements,” the COVID-19 health emergency “has ended.” ... They also argue the State’s restrictions treat certain secular businesses more favorably than religious organizations and have been enforced in a discriminatory manner.

The court again rejected plaintiff's arguments, saying in part:

At bottom, Plaintiffs’ renewed motion asks the Court to second guess decisions made by California officials concerning whether COVID-19 continues to present a health emergency and whether large indoor gatherings with singing pose a risk to public health. Although not binding, the Court finds Chief Justice Roberts’s reasoning in this case to be compelling. The background set forth above shows the State and County “are actively shaping their response to changing facts on the ground.” ...  And the evidence demonstrates the COVID-19 pandemic remains an area “fraught with medical and scientific uncertainties,” where the State and County’s latitude “must be especially broad.”

Cert. Filed In Church's Challenge To Illinois COVID-19 Orders

 A petition for certiorari (full text) was filed today with the U.S. Supreme Court in Romanian Pentecostal Church v. Pritzker, (cert. filed 10/14/2020).  In the case, 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. (See prior posting.)  Liberty Counsel issued a press release announcing the filing of the petition for Supreme Court review.                

6th Circuit Hears Arguments On Kentucky COVID Orders Applicable To Churches

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments in Maryville Baptist Church v. Beshear and Roberts v. Beshear. (Audio of oral arguments.) At issue are the constitutionality of Kentucky Governor Andy Beshear's orders limiting mass gatherings, including church services. See prior postings (1, 2). Courthouse News Service reports on yesterday's oral arguments.

DC Restrictions On Outdoor Church Services Violate RFRA

 In Capitol Hill Baptist Church v. Bowser, (D DC, Oct. 9, 2020), a D.C. federal district court issued a preliminary injunction allowing plaintiff church to hold outdoor services, with masks and appropriate social distancing, beyond the 100-person maximum set out in the D.C. mayor's COVID-19 restrictions. The court concluded that current restrictions on the church's outdoor services violate RFRA.  The court said in part:

The District proposes that under its current restrictions the Church could “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as other faith communities in the District have done.... But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. The “substantial burden inquiry asks whether the government has substantially burdened religious exercise . . . not whether [the Church] is able to engage in other forms of religious exercise.”... The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial.”... It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.”...

The court made clear that its order applied only to the church that was plaintiff in this case. 

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Another Religious Challenge To California's COVID-19 Orders

 In a suit filed late last month, a Catholic priest has challenged California Governor Gavin Newsom's COVID-19 emergency orders.  the 77-page complaint (full text) in Burfitt v. Newsom, (CA Super. Ct., filed 9/29/2020) charges that the Governor's orders violate various provisions of the California state constitution, including free exercise, equal protection, liberty of speech and equal protection.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Catholic and Jewish Organizations Sue New York Governor Over New COVID-19 Restrictions

On Tuesday of this week, New York's Governor Andrew Cuomo announced new restrictions in spots in which clusters of COVD-19 cases have broken out. Areas include parts of Brooklyn and Queens and parts of Broome, Orange and Rockland Counties. The restrictions target mass gatherings and houses of worship, as well as businesses and schools.  In response, two important religious entities-- one Catholic and one Jewish-- have filed separate suits challenging the new Order.

The complaint (full text) in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, filed 10/8/2020) reads in part:

The governor now proposes to limit in-person attendance at all "Houses of Worship" to the lesser of 10 people or 25% of church capacity in certain designated geographical areas, and to the lesser of 25 people or 33% of church capacity in others. As applied to the Diocese, whose impacted churches overwhelmingly seat upwards of 500 to 1000 parishioners, the percentage caps ... are rendered wholly illusory, and thus the churches will be placed in the untenable position of limiting attendance at Sunday mass and other fundamental Catholic services such as baptisms, weddings and funerals, to just 10 worshippers in designated "red" zones or just 25 worshippers in designated "orange" zones. Meanwhile, all other essential businesses can remain open without any capacity limitations whatsoever....

ABC7 News reports on the lawsuit. 

The complaint (full text) in Agudath Israel of America v. Cuomo, (ED NY, filed 10/8/2020) alleges in part:

5. Defendant’s Executive Order and the restrictions it contains will disrupt the religious observance of tens of thousands of Orthodox Jews in New York State, depriving them of their religious worship and holiday observance. The Executive Order requires enforcement of its restrictions to begin on Friday, October 9, which is Hoshanah Rabbah, the first of these three holidays.

6. Defendant has imposed these onerous and discriminatory new restrictions despite the fact that even he concedes he has not enforced the existing restrictions on houses of worship that already impose capacity limits and health requirements. Plaintiffs have completely complied with these rules, and Defendant does not contend otherwise.

Courthouse News Service reports on the suit.

UPDATE: Temporary restraining orders were denied in both cases on Oct. 9. See Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 U.S. Dist. LEXIS 188459.

New Jersey COVID Limits On Indoor Church Services Are Upheld

In Robinson v. Murphy, 2020 U.S. Dist. LEXIS 185070 ( NJ, Oct. 2, 2020), a New Jersey federal district court refused to issue a preliminary injunction in a suit challenging COVID-19 Orders of the governor of New Jersey. The Orders limit the permitted number of worshipers at indoor religious services and require masks at services. Rejecting free exercise challenges, the court said in part:

[T]he challenged measures are subject to rational basis review because they are generally applicable and neutral laws that burden secular and religious activity alike. The State's policies are designed to combat the spread of COVID-19 in New Jersey given the current understanding of the virus which the Court finds is undoubtedly a legitimate governmental interest....

Furthermore, ... the laws are not substantially underinclusive requiring the application of strict scrutiny, as the indoor gatherings restrictions contain similar exceptions for religious purposes and for secular purposes, indoor religious gatherings have higher maximum capacities than secular indoor gatherings, and, as Plaintiffs themselves acknowledge, there are both feasibility and religious purpose exceptions included in the mask requirements.

Plaintiffs, a priest and a rabbi, had also argued that the orders violate the Establishment Clause:

Plaintiffs assert that the orders violate the Establishment Clause because Defendants are attempting to dictate the precise manner in which Plaintiffs and their congregants worship. They further contend that "by mandating crude and medically useless face coverings," Defendants have made it difficult to say mass or teach the Jewish faith.... The Court finds that the indoor gatherings restrictions and mask requirements pass constitutional muster.

The court, in addition, rejected free speech, equal protection and due process challenges.

9th Circuit Upholds California's COVID Restrictions On Religious Services

 In Harvest Rock Church, Inc. v. Newsom, (9th Cir., Oct. 1, 2020), the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Gavin Newsom’s COVID-19 Orders that restrict in-person worship services. The majority said in part: 

The evidence that was before the district court does not support Harvest Rock’s arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters....

Harvest Rock also contends that the Governor failed to provide a rationale for the more lenient treatment of certain secular activities, such as shopping in a large store. However, the Governor offered the declaration of an expert, Dr. James Watt, in support of the claim that the risk of COVID-19 is elevated in indoor congregate activities, including in-person worship services.

Judge O'Scannlain dissented, saying in part:

There is no doubt that California’s COVID-19 scheme ... imposes direct and severe burdens on religious practice within the State. And where a State imposes such burdens through measures that are not “neutral and of general applicability,” its actions must survive strict scrutiny.... Because California’s COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities, I believe that the church is quite likely indeed to succeed on the merits of its challenge to such regulations.

Los Angeles Times reports on the decision.

Preliminary Injunction Denied In Suit Targeting Colorado's COVID-19 Limits On Size of Religious Gatherings

On Monday, a challenge to Colorado's COVID-19 orders was filed.  In a 98-page complaint, a religious conference center and affiliated Bible college claim that Colorado's limitation on the number of persons who can attend in-person religious services violates its 1st and 14th Amendment rights. The complaint (full text) in Andrew Wommack Ministries, Inc. v. Polis, (D CO, filed 9/28/2020), alleges unconstitutional discrimination between religious gatherings and non-religious gatherings, as well as between the Ministries' religious and nonreligious gatherings in the same facilities, giving examples such as:

178. Under the Governor’s Orders, AWMI’s volunteers may provide nonreligious counseling, social services, and other necessities of life for women constituents of Life Network’s Colorado Springs Pregnancy Center and Choices Pregnancy Center may be administered in unlimited numbers, provided only that social distancing is satisfied.

179. But, if volunteers associated with AWMI and Charis Bible College students transition from providing these women with counseling, social services, food, clothing, and other necessities of life to providing them spiritual counseling, spiritual food in the form of communion, or otherwise transitions to a religious worship service with the same women in the same room, the Governor’s Orders would automatically subject them to criminal penalties for hosting an impermissible worship service if there is more than 175 women in the room.

The complaint says that speedy relief is required:

4. The Governor’s Orders interfere with and place a cloud of potential criminal and civil legal action over AWMI’s upcoming Pastor’s Conference scheduled to begin at 7:00 PM on October 5, 2020. In addition to outside pastors and ministers who are invited to the conference, attendance at the conference is a required part of the education program for all 652 students at Charis Bible College.

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

On Tuesday, in a 7-page order (full text), a Colorado federal district judge denied a preliminary injunction, pointing out:

United States District Judge Raymond Moore recently rejected Plaintiff’s arguments in High Plains Harvest Church v. Polis.... Additionally, the Seventh Circuit recently rejected a church’s argument that similar public health laws unconstitutionally favored secular activity

Plaintiff immediately filed a Notice of Appeal.

Church Challenges D.C.'s COVID-19 Orders

The first suit by a church challenging the District of Columbia's COVID-19 Orders was filed last week by an 850-member evangelical congregation.  The D.C. Orders limit the number of persons who can gather for religious services. The complaint (full text) in Capitol Hill Baptist Church v. Bowser, (D DC, filed 9/22/2020), alleges in part:

For nearly 2,000 years, Christians have gathered each Sunday throughout the year in observance of Christ’s resurrection from the dead on the first day of the week, and the physical gathering of the church is central to that celebration. Indeed, the Greek word translated as “church” in our English versions of the Christian scriptures is “ekklesia,” which literally means “assembly.”... 

As with other communities of Christian faith around the country, CHBC believes that a central part of following Christ is worshipping together in the same physical space.

The suit alleges violations of the 1st Amendment, the 5th Amendment and RFRA. Washington Post reports on the lawsuit.

Ohio Law Bans COVID Orders That Close Houses of Worship

Ohio Governor Mike DeWine yesterday signed into law HB272 (full text) which prohibits any public official from issuing an order to close all places of worship in the state or in a geographic region of the state. The bill responds to actions in other states closing churches to prevent the spread of COVID-19.  AP reports on the Governor's action.

1st Circuit Hears Oral Arguments In COVID-19 Worship Service Limitation Challenge

 The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments in Calvary Chapel of Bangor v. Mills. (Audio of full oral arguments.) In May, a Maine federal district court a Maine federal district court rejected a church's First Amendment challenge to Maine Governor Janet Mills' COVID-19 order which at that time prohibited religious gatherings of more than ten people. (See prior posting.)  WBAI News reports on the oral arguments.

California Ban On Indoor Religious Services Upheld

In Harvest Rock Church v. Newsom, (CD CA, Sept. 2, 2020), a California federal district court refused to issue a preliminary injunction to a church challenging the state's COVID-19 orders that prohibit indoor church services.  The court said in part:

Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread. Accordingly, Plaintiffs are not likely to succeed on the merits of their Free Exercise Claim. 

The court also rejected Establishment Clause and free speech challenges.