Loss On COVID Houses Of Worship Restrictions Proves Costly To New York

After extensive litigation, in February a New York federal district court (without opposition from the state) issued an injunction against New York state's COVID-19 fixed capacity and percentage capacity limits on houses of worship” in red and orange zones. (See prior posting). Now in Agudath Israel of America v. Hochul, (ED NY, Dec. 6, 2021), a New York federal district court awarded to plaintiffs attorneys' fees totaling $446,521.94 which must be paid by the state of New York.

Suits In Delaware Seek Bans On Future Emergency Orders Affecting Worship Activities

Two similar lawsuits were filed yesterday in a Delaware state trial court seeking to prevent any future pandemic or other emergency declarations from placing limits on gatherings for religious worship.  The complaints in Hines v. Carney, (DE Ch., filed 12/1/2021) (full text) and Landow v. Carney, (DE Ch., filed 12/1/2021) (full text), citing state and federal constitutional protections, seek injunctions to prohibit

(1) any shutdown Order prohibiting Sunday or weekday assembly for religious worship or setting any attendance limit of 10 or more on the number of persons permitted to worship; (2) any shutdown or subsequent Orders preventing or directing how speech, preaching and teaching from the pulpit is to occur; (3) any shutdown or subsequent Orders prohibiting speech through singing in worship of God, individually or as a group; (4) any shutdown or subsequent Orders prohibiting assembly of worshipers based on age or any other personal characteristics such as health, wealth, race, gender, or other physical or emotional characteristic; (5) any Orders prohibiting Baptism or directing how the ritual is to be conducted; (6) any Orders prohibiting the Lord’s Supper or directing how the ritual is to be conducted; and (7) expressing preferences or favoritism for the practices of one religion over another.

WDEL News reports on the lawsuits.

Texas Voters Approve Measure To Ban Limits On Religious Services

In reaction to limits imposed on religious gatherings during the COVID pandemic, Texas voters yesterday approved Proposition 3, a state constitutional amendment which provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The vote was 62.42% in favor, 37.58% opposed. More details at Ballotpedia.

Challenge To Superseded COVID Order Dismissed As Moot

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug. 16, 2021), a New Jersey federal district court dismissed as moot a challenge to a now superseded COVID-19 executive order by the governor of New Jersey limiting the number of people who could attend an indoor religious service. The court also held it will abstain under the Younger doctrine.

New Hampshire Enacts Law To Protect Churches In Future Emergencies

On Tuesday, New Hampshire Governor Chris Sununu signed HB542, the New Hampshire Religious Liberty Act (full text). The law provides in part:

[D]uring a state of emergency, the state government shall permit a religious organization to continue operating and to engage in religious services to the same or greater extent that other organizations or businesses that provide essential services that are necessary and vital to the health and welfare of the public are permitted to operate.

Under the statute, the state may still require religious organizations to comply with neutral health, safety, or occupancy requirements, but must meet a strict scrutiny test if the requirement imposes a substantial burden on a religious service.

AP reports on the new law, which takes effect in 60 days.

Challenge To Virginia's COVID Restrictions On Worship Services Dismissed As Moot

 In Tolle v. Northam, (ED VA, July 29, 2021), a Virginia federal district court dismissed as moot a lay minister's challenge to the Virginia governor's now-terminated COVID-19 orders.  Those orders had caused plaintiff's church to stop offering public worship services and otherwise limited gatherings for religious worship.

Supreme Court Justice Denies Church's Application For Injunction Pending Cert. Application

Yesterday, U.S. Supreme Court Justice Stephen Breyer in Calvary Chapel of Bangor v. Mills, denied  an application (full text) by a Maine church for injunctive relief pending disposition of its petition for certiorari. The church sought to prevent Maine's governor from reinstating COVID-related restrictions on worship services while exempting other activities. AP reports on the denial.

8th Circuit: Challenge To Church Capacity Limits Dismissed On Mootness and Standing Grounds

 In Hawse v. Page, (8th Cir., July 30, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, dismissed on standing and mootness grounds challenges to St. Louis County, Missouri's now-superseded COVID-related limit on the number of persons who could attend church services. The majority said in part:

Whether or not the churches were formally closed in April 2020, the complaint is bereft of an allegation that but for the Order, the churches attended  by the appellants would have allowed groups of ten or more persons to gather in the early weeks of the pandemic.

Judge Stras filed a dissenting opinion. 

Plaintiff Lacks Standing To Challenge Michigan COVID Order Exemption For Worship Services

In Bormuth v. Whitmer, (ED MI, July 12, 2021), a Michigan federal magistrate judge denied plaintiff's motion to file a supplemental complaint in a challenge to a portion of Michigan Governor Gretchen Whitmer's now-rescinded COVID-19 Orders. At issue was an exemption from penalties for violation of stay-at-home orders by places of religious worship that allowed worship services, or by individuals travelling to places of worship. The court said in part:

The exemptions from prosecution for places of religious worship and their owners caused no harm to Plaintiff; if anything, they provided a protection to him. Under the exemptions, he enjoyed the freedom to practice his own religion at any indoor or outdoor “place of religious worship” without fear of prosecution....

The exemptions at issue neither established a state religion, nor favored particular religions, nor inhibited Plaintiff’s own free expression of genuinely-held religious beliefs. Indeed, the exemptions protected his expression of such beliefs....

Plaintiff’s proposed supplemental complaint still fails to demonstrate standing on the basis of a “concrete, particularized, and actual or imminent” injury... His proposed supplemental pleading will not cure the lack of justiciability identified in my prior report and recommendation.

New Texas Law Protects Religious Organizations During Future Emergencies

On June 18, Texas Governor Greg Abbott signed HB 525 (full text) which prohibits the state from restricting activities of religious organizations during a state of emergency. It provides in part:

(a) Notwithstanding any other law, a religious organization is an essential business at all times in this state, including during a declared state of disaster, and the organization ’s religious and other related activities are essential activities even if the activities are not listed as essential in an order issued during the disaster.

(b) A governmental entity may not: (1)At any time, including during a declared state of disaster, prohibit a religious organization from engaging in religious and other related activities or continuing to operate in the discharge of the organization ’s foundational faith-based mission and purpose; or

(2) during a declared state of disaster order a religious organization to close or otherwise alter the organization ’s purposes or activities.

The Texan reports on the new law.

Wisconsin Courts End COVID Suspension of Prison Religious Services

 In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., June 21, 2021), a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID. Wisconsin Institute for Law & Liberty has additional information on the case. Wisconsin Journal Sentinel reports that the Department of Corrections has extended the order to any religious denomination that wishes to offer in-person services.

5th Circuit Hears Arguments On Louisiana COVID Limits On Churches

On Monday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Spell v. Edwards. In the case, a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. (See prior posting.) An application to the U.S. Supreme Court for an emergency injunction pending appeal was rejected by Justice Alito. (See prior posting.) AP reports on the oral arguments.

Justice Gorsuch Denies "Shadow Docket" Injunction Pending Appeal Sought By Two Churches

In a little-noticed order on the Supreme Court's "shadow docket", earlier this week Justice Gorsuch, without referring the petition to the entire Court, denied an emergency application for an injunction pending appeal filed by two churches who oppose Colorado's COVID-19 executive orders and public health orders. In Denver Bible Church v. Polis, (US Sup. Ct., application denied 6/1/2021), the churches sought an injunction while appeals are pending to prohibit the state from issuing future disaster emergency or public health orders against houses of worship and from enforcing against them any current orders issued since the beginning of the COVID pandemic. (Full text of application and brief in support). SCOTUSblog has more on the action. Here are links to other filings in the case.

Challenges To Alabama COVID-19 Orders Are Unsuccessful

In Case v. Ivey, MD AL, June 1, 2021), six plaintiffs brought a range of constitutional challenges to Alabama Governor Kay Ivey's COVID-19 Orders. In a 68-page opinion, the court dismissed all of them-- some on standing or mootness grounds, others on substantive or qualified immunity grounds. Among the claims, one plaintiff contended that the Orders denied her the right to attend the church of her choice. Two pastors claimed that the Orders resulted in the denial of their right to preach and conduct in-person services. The court concluded that defendants had qualified immunity as to the damage claims against them for violating the First Amendment's Free Exercise, Freedom of Assembly and Establishment Clauses because plaintiffs did not plausibly allege that defendants’ conduct violated law that was clearly established at the time of their actions.

Another Church Seeks Emergency Injunction Against COVID Limits From Supreme Court

Last Friday, a Maine church filed a motion with the U.S. Supreme Court seeking an injunction while its petition for certiorari is pending to prevent Maine from enforcing its COVID-19 capacity restrictions on worship services. The petition (full text) in Calvary Chapel of Bangor v. Mills, (Sup. Ct. filed 5/21/2021), says in part:

For 381 days, Respondent Governor Janet Mills ... has been imposing unconstitutional restrictions on Calvary Chapel’s religious worship services while exempting myriad other activities from similar restrictions. Every religious worship gathering of Calvary Chapel from March 2020, to the present has been and is “illegal” under the Governor’s Orders. Maine imposes the most severe restrictions in the country on churches and places of worship.

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

County's Current COVID Restrictions Upheld

In Abundant Life Baptist Church of Lee's Summit, Missouri v. Jackson County, Missouri, (WD MO, May 17, 2021), a Missouri federal district court held that free exercise, free speech, freedom of assembly and Establishment Clause challenges to prior versions of Jackson County's COVID-19 restrictions should not be dismissed. However challenges to the current version of the restrictions were dismissed because the restrictions do not distinguish between churches and other businesses or indoor spaces.

Church Sues Over Massachusetts COVID Regulations

Suit was filed yesterday in a Massachusetts federal district court by a church challenging the state's COVID-19 reopening regulations. The complaint (full text) in New Life South Coast Church v. Baker, (D MA, filed 5/10/2021), alleges in part:

Massachusetts’ phased COVID-19 reopening regulations, both as drafted by the Commonwealth and as implemented by the City, single out places of worship for differential and disfavored treatment. Under those regulations, restaurants, theaters, public transit, and other places of public gathering have limited or no restrictions on capacity, beyond the practical constraints of social distancing, while places of worship must follow more burdensome capacity restrictions. In addition, the regulations single out places of worship for special disfavor by barring “communal gatherings” before and after the religious service—a restriction that applies to no other institution or activity, and that purports to regulate how Massachusetts citizens may exercise religion.

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

Supreme Court GVR's Challenge To California Limits On Indoor Worship

In February, 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. (See prior posting.) Today in the case (Docket No. 20-746, April 26, 2021) the Supreme Court granted certiorari, summarily vacated the 9th Circuit's judgment upholding the restrictions, and remanded for further consideration in light of Tandon v. Newsom. (Order List).

Multi-Faith Group Issues Statement Questioning Religious Exemptions From COVID Orders

On Monday, some 27 religious organizations representing various Christian, Jewish and Muslim traditions issued a statement (full text) expressing concern that states are going too far in adopting legislation exempting houses of worship from COVID-19 health orders and other emergency orders.  The statement reads in part:

We appreciate the desire to protect our right to worship and gather for religious activities. Too often, however, these bills are overly broad and could result in policies that threaten public health and safety.

Religious freedom is a fundamental American value, and the freedom to worship in accordance with one’s spiritual practices and traditions is a right of the highest order. At the same time, religious freedom does not demand tying the hands of public officials who are trying to safeguard public health as they respond to unforeseen events like pandemics, natural disasters and other emergencies. Indeed, all of our denominations have found creative ways to provide opportunities for worship during the pandemic, recognizing the spiritual sustenance and sense of community that religious practices provide....

Times of public crisis demand that all community leaders—religious, secular, and governmental—work together to find solutions. By giving religious gatherings a pre-emptive exemption from future emergency orders, we fear that these bills will unintentionally paint religious communities as part of the problem, not the solution, and thereby undercut our ability to partner with community leaders to defeat the crisis.

[Thanks to Don Byrd at BJC for the lead.]

Supreme Court Enjoins, Pending Appeals, California Limits On In-Home Worship Services

Late Friday night, in another case on its so-called "shadow docket", the U.S. Supreme Court in Tandon v. Newsom,  (Sup. Ct., April 9, 2021), granted an injunction preventing enforcement during the appeal process of California's COVID-19 order limiting religious gatherings in homes to three households. In a 5-4 decision, the majority in a 4-page per curiam opinion outlined important principles to be applied in deciding free exercise claims, saying in part:

First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise....

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue....

California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.

Justice Kagan filed a 2-page dissent, joined by Justices Breyer and Sotomayor. They said in part:

The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.

Chief Justice Roberts also dissented, without filing an opinion. Volokh Conspiracy blog has more on the decision.