Churches' Challenge to Minnesota COVID Orders Moves Ahead

In Northland Baptist Church of St. Paul, Minnesota v. Walz, (D MN, March 30, 2021), a Minnesota federal district court refused to dismiss at the pleading stage complaints by two churches and a pastor that Minnesota's COVID-19 orders treat religious services less favorably than comparable secular activities. The decision also dealt extensively with several procedural and jurisdictional issues, as well as with other challenges by business plaintiffs.

DC's Capacity Restrictions On Churches Held Invalid

In Roman Catholic Archbishop of Washington v. Bowser, (D DC, March 25, 2021), the D.C. federal district court granted a preliminary injunction against D.C.'s COVID-19 capacity restrictions on houses of worship, finding that they violate the 1st Amendment as well as RFRA. The limit of the lesser of 25% or 250 congregants particularly affects the  Basilica of the Shrine of the Immaculate Conception which seats at least 3000 people. The court said in part:

In practical terms, this means that the Archdiocese’s churches must stop admitting parishioners once they become a quarter full, but Whole Foods or Target can take in as many customers as they wish while complying with social-distancing requirements. “[O]nce a State creates a favored class of businesses, as [the District] has done in this case, [it] must justify why houses of worship are excluded from that favored class.”....

The District’s restrictions are also problematic because the 250-person cap uniquely burdens churches. The Mayor’s order explained that the District set the hard cap at 250 based on the number of persons that “the largest restaurant” could serve at 25 percent capacity....   But as the District admits, “no restaurant in the District has a room that can hold 1,000 people.”

Courthouse News Service reports on the decision.

Certiorari Denied In Church's Challenge To Illinois COVID Restrictions

The U.S. Supreme Court today denied review in Elim Romanian Church v. Pritzker, (Docket No. 20-569, certiorari denied, 3/29/2021). (Order List).  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.)

Scottish Court Invalidates COVID Regulations Closing Churches

In In the cause of Philip for Judicial Review of the closure of places of worship in Scotland, (Ct. Sess. O.H., March 24. 2021), Scotland's Outer House of the Court of Session held that Regulations closing places of worship during the COVID-19 pandemic violate petitioner's right to worship under Art. 9 of the European Convention on Human Rights. The court said in part:

[S]ince the Regulations do interfere with the constitutional right of the petitioners to worship, notwithstanding that they have as their primary purpose the protection of health and preservation of life, they will be beyond the constitutional competence of the respondents (at least insofar as the petitioners and the additional party are concerned) if that interference is not proportionate...

[W]ithout in any way questioning the science which underlay the respondents’ decision-making, I conclude that the respondents have failed to show that no less intrusive means than the Regulations were available to address their aim of reducing risk to a significant extent. Standing the advice they had at the time, they have not demonstrated why there was an unacceptable degree of risk by continuing to allow places of worship which employed effective mitigation measures and had good ventilation to admit a limited number of people for communal worship.... Even if I am wrong in reaching that conclusion, the respondents have in any event not demonstrated why it was necessary to ban private prayer, the reasons which were given for that recommendation being insufficient to withstand even the lowest degree of scrutiny.

Law & Religion UK and Christian Post report on the decision.

Cert. Petition Filed In Maine Church's Challenge To COVID Limitations

A petition for certiorari (full text) was filed on Monday with the U.S. Supreme Court in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals dismissed a church's interlocutory appeal of the denial of a temporary restraining order against enforcement of the Maine governor's COVID Orders. Those orders, which have been amended since the 1st Circuit's decision, continue to limit the number of persons that can gather at a faith-based event. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition for review.

Canadian Province's Limits On Worship Services Are Upheld

In Beaudoin v. British Columbia, (BC Sup. Ct., March 18, 2021), a British Columbia trial court upheld against religious freedom challenges the COVID-19 Gathering and Events orders of the Canadian province's Provincial Health Officer.  The court said in part:

I find that Dr. Henry carefully considered the significant impacts of the impugned G&E Orders on freedom of religion, consulting with the inter-faith community to discuss and understand the impact of restrictions on gatherings and events on their congregations and religious practices....

Her decision was made in the face of significant uncertainty and required highly specialized medical and scientific expertise. The respondents submit, and I agree, that this is the type of situation that calls for a considerable level of deference....

There is a reasonable basis to conclude that there were no other reasonable possibilities that would give effect to the s. 2 Charter protections more fully, in light of the objectives of protecting health, and in light of the uncertainty presented by the Virus.

Although the impacts of the G&E Orders on the religious petitioners’ rights are significant, the benefits to the objectives of the orders are even more so. In my view, the orders represent a reasonable and proportionate balance.

Thus, the respondents have proven that the limits the G&E Orders place on the religious petitioners’ s. 2 Charter rights are justified under s. 1 of the Charter.

Cold Lake Sun editorializes on the decision.

California COVID Restrictions On Singing At Worship Services Upheld

In Calvary Chapel of Ukiahv. Newsom, (ED CA, March 10, 2021), a California federal district court refused to issue a preliminary injunction against California's COVID-19 restriction on indoor singing and chanting during worship services. The court rejected plaintiffs' free exercise, free speech, equal protection and Establishment Clause claims. The court said in part:

[T]he State has now issued protocols allowing those who serve as performers during church services, presumably including choir members or soloists, to sing indoors subject to masking and distancing. Under these newest rules, the State argues, “worship services are treated more favorably than the entertainment industry.” ... To the extent one might question whether churches were being treated equivalently to the entertainment industry, that doubt appears to have been eliminated beyond a shadow of a doubt.

7th Circuit Denies Preliminary Injunction Against Prior Illinois Limits On Worship Services

In Cassell v. Snyders, (7th Cir., March 8, 2021), the U.S. 7th Circuit Court of Appeals refused to issue a preliminary injunction against a now-superseded Illinois COVID-19 order that prohibited public gatherings of more than ten people, including religious services. The court said in part:

Intervening authority from the Supreme Court offers plaintiffs a greater prospect for success on the merits of their First Amendment claim than either the district court or we had expected. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). Yet recent Supreme Court authority has also indicated that equitable considerations weigh against granting a preliminary injunction at this time, when the prospect of irreparable injury to the plaintiffs is very low....

Even if the plaintiffs now appear more likely to succeed on the merits of their free exercise claim, there simply is no compelling need for preliminary relief against these long-expired orders, and there is every reason to expect that even if Illinois in the future believes some binding restrictions on worship services are needed, it will act with a close eye on the Supreme Court’s latest pronouncements on the subject, including the need for measures closely tailored to meet public health needs.

[Thanks to Jeff Pasek for the lead.]

Virginia Trial Court Rejects Religious Challenge To COVID-19 Restrictions On Churches

In Young v. Northam, 2021 Va. Cir. LEXIS 35 (VA Cir. Ct., Feb. 27, 2021), a Virginia state trial court refused to enjoin the Governor's most recent COVID-19 restrictions on churches. Finding that plaintiffs have not overcome the exception for health and safety in the Virginia Statute for Religious Freedom, the court said in part:

The Petitioners religious beliefs are genuine and sincere, but Executive Order # 72 does not prohibit assembly, the taking of communion, singing, praying nor restrict capacity in churches. St. Matthew states that "For where two or three gather in my name, there am I with them." Matthew 18:20.

There are no capacity limits in Executive Order # 72 and non-religious gatherings have stricter requirements regardless of occurring indoors or outdoors. (12). Section (E) of the statute certainly contemplated that some temporary restrictions may be necessary in emergency situations.

The next issue, consistent with the statute, is whether the least restrictive means have been employed to further the compelling governmental interest. Executive Order # 72 exempts religious services from the otherwise-universal temporary gathering restrictions. The order indicates that individuals may be seated wherever and with whomever they want with appropriate physical distancing.

This court recognizes an honest distinction between an appropriate political debate that reflects rational disagreement with the Respondent's order and a judicial ruling that such order is unconstitutional. Therefore, the court holds that the Petitioners are not entitled to injunctive relief under the statute.

The court also rejected a 1st Amendment free exercise challenge. 

Supreme Court Allows California Churches To Hold Indoor Services While Appeals Continue

The U.S. Supreme Court on Friday night in Gateway City Church v. Newsom, (Sup. Ct., Feb. 26, 2021) issued an injunction that will allow petitioner churches to hold indoor worship services while their appeal is disposed of by the 9th Circuit and a petition for certiorari is filed and acted upon by the Supreme Court. In the case, the U.S. 9th Circuit Court of Appeals refused to enjoin enforcement, while the appeal is ongoing, of a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. (See prior posting.) In granting an injunction, the Supreme Court said:

The Ninth Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021).

Justice Kagan, joined by Justices Breyer and Sotomayor dissented. 

SCOTUSblog reports on the Court's order, pointing out that the county had informed the Court that the current ban will soon be lifted and indoor gatherings with capacity restrictions will be allowed.

Canadian Court Refuses To Order Churches To Follow Health Orders Pending Hearing On Constitutionality

In Beaudoin v. British Columbia, (BC Sup. Ct., Feb. 17, 2021), a trial court in the Canadian province of British Columbia refused to issue an interlocutory injunction requiring three churches who are petitioners in the case to comply with COVID-19 public health orders banning in-person religious services in the province. The churches, clergy and another plaintiff filed suit challenging the public health orders as being in violation of the Canadian Charter of Rights and Freedoms. A hearing on this challenge is scheduled for March 1.  Pending that hearing, the government sought immediate injunctions to prevent the churches from continuing to hold in-person services. Refusing to issue the requested injunction, the court said in part:

I am left to wonder what would be achieved by the issuance of an injunction in this case....

When asked, counsel for the respondents said that the respondents accept that the petitioners’ beliefs are deeply held, but in response to my question as to why an injunction was sought, responded that while the petitioners and others like them are not dissuaded from their beliefs and practices by the impugned orders, an order from this Court is more likely to accomplish their compliance.

Given the other remedies available to the respondents, I have reservations that an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the deeply held beliefs of the petitioners and their devotees.... 

Vancouver Sun reports on the decision.

9th Circuit Rejects Church's Challenge On COVID Restrictions

In Gateway City Church v. Newsom, (9th Cir., Feb. 12, 2021), the U.S. 9th Circuit Court of Appeals upheld a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. The court said in part:

The challenged ban on indoor “gatherings” ... applies equally to all indoor gatherings of any kind or type, whether public or private, religious or secular. The Directive, which appears to affect far more activities than most other jurisdictions’ health measures, does not “single out houses of worship” for worse treatment than secular activities.

Santa Clara County issued a press release announcing the decision.

New Arkansas Law Limits COVID Restrictions On Religious Organizations

On Feb. 9, Arkansas Act 94 (Religion Is Essential Act) (full text) was signed by Gov. Asa Hutchinson and immediately went into effect. The new law provides that the Governor nor the State Board of Health

shall not prohibit or limit a religious organization from continuing to operate or engage in religious services during a disaster emergency under this subchapter.

The law however does permit requiring: 

religious organizations to comply with neutral health, safety, or occupancy requirements issued under state or federal law that are applicable to all organizations and businesses.

The law goes on to provide, however, that such requirements may not impose a substantial burden on a religious organization unless it is shown to be essential to further a compelling governmental interest and is the least restrictive means of doing so.

"Religious organizations" are broadly defined in the new law to include houses of worship, religious educational institutions and religious leaders, among others.

Another Church Seeks Supreme Court's Intervention On COVID-19 Restrictions

Continuing the flow of cases asking the U.S. Supreme Court to intervene to allow churches to to hold worship services at greater capacity than allowed by state COVID-19 orders, an emergency application for an injunction or summary reversal (full text) was filed with the Supreme Court on Feb. 11 in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals held that the district court's denial of a temporary restraining order was not appealable before the district court rules on the church's preliminary injunction request. (See prior posting.) Liberty Counsel issued a press release announcing the filing.

Court Says Quebec Worship Limits Apply To Capacity for Each Room

Canadian Lawyer reports on a decision interpreting Quebec's COVID-19 limits on indoor worship services:

Current restrictions on indoor religious gatherings in Montreal means that a maximum of 10 people may congregate in each room of a house of worship, as long as each has a separate entrance or access to the street, the Quebec Superior Court of Justice has ruled in interpreting public health regulations during COVID-19.

Superior Court Justice Chantal Masse’s decision on Feb. 5 ended the legal battle of the Quebec Council of Hasidic Jews and several Jewish congregations, which successfully argued the 10-person limit per synagogue was unacceptable and violated freedom of religion....

New York COVID-19 Restrictions On Houses of Worship Enjoined

In a case on remand from the 2nd Circuit, a New York federal district court (without opposition from the state) has issued an injunction against New York state's COVID-19 restrictions on houses of worship.  The court in Agudath Israel of America v. Cuomo, (ED NY, Feb. 9, 2021) said in part:

In light of the decisions by the Supreme Court, Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo ... and the Second Circuit, Agudath Israel of Am. v. Cuomo ..., specifically finding that “both the fixed capacity and percentage capacity limits on houses of worship” in  the red and orange zones “are subject to strict scrutiny,” ... Defendant has agreed to an injunction against enforcement of the 25% and 33% capacity limits in red and orange zones, respectively.... Subsequently, Defendant’s counsel has represented in status conferences that before the end of February 2021 EO 202.68 will be amended to remove houses of worship.

For the foregoing reasons, the court grants a permanent injunction against enforcement of EO 202.68’s 25% capacity or maximum of 10-people, and 33% capacity or maximum of 25-people limitations on houses of worship, respectively in red and orange zones.

Becket issued a press release announcing the decision.

Supreme Court Enjoins, Pending Appeal, California's Total Ban On Indoor Worship Services

Yesterday, in another decision on the Court's so-called "shadow docket", the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., Feb. 5, 2021), enjoined while a petition for certiorari is pending a portion of California's restrictions on indoor worship services. Last month, the 9th Circuit upheld the restrictions. Now the Supreme Court temporarily enjoined enforcement of the state's total ban on indoor worship services in areas of the highest COVID-19 infection ("Tier I"). However it refused to enjoin the state's 25% capacity limits on worship services in Tier I, and refused to enjoin its ban on singing and chanting during services. The Court, in its unsigned order, added:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Chief Justice Roberts filed a brief concurring statement, saying in part:

[F]ederal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.”... At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

Justice Barrett, joined by Justice Kavanaugh, filed a brief concurring opinion. 

Justices Thomas, Gorsuch and Alito would also have enjoined the capacity limits and the ban on singing and chanting. However Justice Alito would have postponed the injunction on capacity limits for 30 days to give the state an opportunity to show that these limits are narrowly drawn to reduce COVID spread to the same extent as limits on other essential activities. Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion explaining their position, saying in part:

Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses....

Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard....

Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, saying in part:

California’s response to the COVID pandemic satisfies that neutrality rule by regulating worship services the same as other activities “where large groups of people [come together] in close proximity for extended periods of time.”... The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected....

The Court has decided that the State must exempt worship services from the strictest aspect of its regulation of public gatherings. No one can know, from the Court’s 19-line order, exactly why: Is it that the Court does not believe the science, or does it think even the best science must give way? In any event, the result is clear: The State may not treat worship services like activities found to pose a comparable COVID risk, such as political meetings or lectures. Instead, the State must treat this one communal gathering like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its public health policy, the Court forgets what a neutrality rule demands. The Court insists on treating unlike cases, not like ones, equivalently.

Vox reports on the decision, with particular attention to Justice Barrett's opinion-- her first signed opinion since joining the Court.

Virginia Governor Protected By 11th Amendment In Church's Suit Challenging COVID-19 Orders

In Lighthouse Fellowship Church v. Northam, (ED VA, Jan. 27. 2021), a Virginia federal district court dismissed a church's suit against Virginia's governor challenging COVID-19 restrictions on worship services. The court held that under the 11th Amendment, the governor is immune from suit challenging his orders. The suit contended that the orders violated federal and state constitutional and statutory provisions. Christian Post reports on the decision. The Department of Justice had filed a statement of interest supporting plaintiff in the case. (See prior posting.)

Another Decision On California COVID Limits On Worship Services

In Gateway City Church v. Newsom, (ND CA, Jan. 29, 2021), a California federal district court, discussing recent 9th Circuit and Supreme Court precedents, upheld portions of COVID-19 state and county restrictions on worship services, while preliminarily enjoining other parts of the state's orders.  The court upheld the state prohibition on indoor worship in Tier I high risk areas. It also upheld the county's general prohibition on gatherings of all sorts. The court however enjoined enforcement of state 100- and 200- person capacity limits in Tier II and III recovery-- but allowed percentage-based capacity limits. Finally it enjoined restrictions on activities other than worship services in houses of worship.

Church Again Asks Supreme Court To Invalidate California COVID Restrictions

In its continuing challenge to California's COVID-19 restrictions on worship services, a California church is again seeking an emergency injunction from the Supreme Court.  The application for an injunction (full text) in Harvest Rock Church, Inc. v. Newsom, (Sup. Ct., filed 1/26/2021) challenges the 9th Circuit's decision earlier this week upholding California's total ban on indoor worship services in highest risk (Tier I) areas, while striking down 100- and 200-person limits at places of indoor worship in Tier 2 and 3 areas. In December, the Supreme Court had remanded the case for further consideration. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the latest application with the Supreme Court.