Certiorari Denied in Dispute Over Standing to Challenge Covid Restrictions on Churches

The U.S. Supreme Court today denied review in Grace Bible Fellowship v. Polis, (Docket No. 24-226, certiorari denied 10/15/2024). (Order List). (Certiorari petition). In the case, the U.S. 10th Circuit Court of Appeals (10th Circuit opinion) held that plaintiffs lacked standing to obtain prospective declaratory relief in their challenge to Colorado's authority to impose public health restrictions on houses of worship.

West Virginia Ban on Churches Incorporating Violates 1st Amendment

In Hope Community Church v. Warner, (ND WV, Sept. 26, 2024), a West Virginia federal district court held that the West Virginia constitutional provision that bars churches from incorporating is unconstitutional.  The court said in part:

Because Article VI, Section 47 of the West Virginia Constitution that reads, in part, “[n]o charter of incorporation shall be granted to any church or religious denomination,” the Court finds it is not neutral or generally applicable, and it does not further a compelling government interest. Furthermore, the Court holds this provision violates the Church’s First Amendment rights to the free exercise of religion, which is applicable to the States through the Fourteenth Amendment.

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

6th Circuit: Permit Requirement Did Not Substantially Burden Church

 In Dad's Place of Bryan, Ohio v. City of Bryan, Ohio, (6th Cir., Sept. 5, 2024), the U.S. 6th Circuit Court of Appeals refused to enter a preliminary injunction pending appeal to prevent the city from enforcing requirements that the church obtain a permit or variance before people may sleep on the first floor of the church building. Rejecting plaintiff's RLUIPA argument, the court said in part:

Dad's Place fails to show that it will likely succeed on establishing that the City's zoning laws substantially burden its religious exercise.... [T]he burdens alleged by Dad's Place are self-imposed.... The City provides a process by which entities in the commercial district can seek a variance or conditional use permit ("CUP") allowing them to operate as residential facilities.... Yet, despite being opened in 2018, Dad's Place has never applied to the City for a CUP or variance.... RLUIPA does not entitle Dad's Place to engage in unauthorized uses without ever seeking a permit or variance to do so....

Additionally, Dad's Place has not shown that it lacks adequate alternatives. For example, it can use a second floor as a residential facility or open a second facility. It asserts that such alternatives "transform the nature of the Church's ministry," but it gives no explanation as to why its ministry requires people to sleep on the ground floor of the building as opposed to the second floor, or why its ministry would be less effective if people slept in a different building that was properly zoned for residential use....

The court also rejected plaintiff's free exercise claim.

Churches Challenge Constitutionality of Johnson Amendment

The Johnson Amendment which prohibits 501(c)(3) tax-exempt organizations from supporting or opposing political candidates was challenged this week as being unconstitutional as applied to churches. The complaint (full text) in National Religious Broadcasters v. Werfel, (ED TX, filed 8/28/2024) alleges in part:

Churches are placed in a unique and discriminatory status by the IRC. Under § 508(c)(1) of the IRC, churches need not apply to the Internal Revenue Service [“IRS”] to obtain recognition of their 501(c)(3) status. The IRC places them automatically within the ambit of 501(c)(3) and thereby silences their speech, while providing no realistic alternative for operating in any other fashion. Churches have no choice; they are automatically silenced vis-à-vis political candidates.

Hundreds of newspapers are organized under § 501(c)(3), and yet many openly endorse political candidates....

Many 501(c)(3) organizations engage in electoral activities that are open, obvious, and well known, yet the IRS allows some, but not all, such organizations to do so without penalty. Again, Plaintiffs believe that such churches have the constitutional right to engage in such participation; they simply want the same right for themselves. ...

The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(c)(3). This is a denial of both religious freedom and equal protection....

Plaintiffs contend that the Johnson Amendment, as written and as applied by the IRS, violates the First Amendment’s Free Speech Clause, Free Exercise Clause, the Fifth Amendment’s Due Process Clause (Void for Vagueness), the Fifth Amendment’s Due Process Clause (Equal Protection), and the Religious Freedom Restoration Act.

Catholic News Agency reports on the lawsuit.

Delaware Supreme Court Dismisses Suits Challenging Prior Covid Restrictions on Houses of Worship

 In In re Covid-Related Restrictions on Religious Services, (DE Sup. Ct., Aug. 1, 2024), the Delaware Supreme Court upheld the dismissal by two lower courts of challenges to restrictions on houses of worship imposed by orders of Delaware's governor during the early stages of the Covid pandemic. Plaintiffs filed suit in the Chancery Court over 18 months after the restrictions were lifted seeking an injunction, and when that was rejected, filed suit in Superior Court seeking damages and a declaratory judgment. The Delaware Supreme Court said in part:

Plaintiffs could not demonstrate reasonable apprehension of future conduct.  As the Court of Chancery noted below, “[a]lthough it is true that the virus continues to circulate and mutate, the possibility of a future surge, much less one that will necessitate emergency measures on par with what the world experienced in the first half of 2020, is speculative at best.”  Appellants do not confront the speculative nature of the future threat they allege, and instead invoke a generalized refrain that any restriction on their religious freedom causes irreparable harm.  This argument, such that it is, does not address the Court of Chancery’s analysis or carry Appellants’ burden to establish subject matter jurisdiction.  The importance of Appellants’ constitutional rights is not disputed, but it also is not dispositive.  The fact remains that, by the time Appellants filed suit, the Challenged Restrictions had been lifted, the Governor had entered into a binding agreement not to impose future restrictions targeting Houses of Worship, and the apprehension of a future pandemic and conditions like those of the early days of the emergency was hypothetical and speculative.  This Court “decline[s] to render an advisory opinion on a hypothetical scenario.”...

... [T]he Superior Court correctly held that Appellants’ injury could not be redressed through a prospective declaratory judgment.  In much the same way that Appellants’ irreparable harm argument crumbled because the Challenged Restrictions no longer were in effect and any future action imposing similar restrictions was speculative, the declaratory judgment sought in the Superior Court would not alter the status quo.  Moreover, Appellants’ constitutional rights would not be restored or further protected by declaratory relief because the complained-of harm had long since ceased and the threat of future harm was speculative....

The Delaware Supreme Court also concluded that a damage action against the Governor was barred by the Delaware State Tort Claims Act and qualified immunity.

2nd Circuit: NY Ban on Firearms in Places of Worship Violates Free Exercise Rights

 Antonyuk v. Chiumento, (2d Cir., Dec. 8, 2023), is a 261-page opinion upholding in part and rejecting in many other respects constitutional challenges to New York's Concealed Carry Improvement Act.  One of the constitutional challenges which the court upheld was a claim by a pastor and his church that applying a firearms ban to non-security personnel in places of worship violates the Free Exercise and Establishment Clauses.  In the case, the pastor alleged that the New York restrictions interfere with his religious duty to protect his congregation by being armed in church and by inviting other congregants with concealed carry licenses to bring their firearms. In accepting that argument, the court said in part:

[T]he CCIA is not neutral because it allows the owners of many forms of private property, including many types of retail businesses open to the public, to decide for themselves whether to allow firearms on the premises while denying the same autonomy to places of worship. By adopting a law that applies differently as to places of worship (alongside the other enumerated sensitive places) than to most other privately owned businesses and properties, the CCIA is, on its face, neither neutral nor generally applicable....

The State provides no explanation for why leaders of religious groups in general, and the Plaintiffs specifically, are less able to “eject persons carrying firearms” than any other property owner who is permitted to make a free choice whether to allow firearms on their premises.... A place of worship that prohibits guns will be equally reliant on the police and the criminal law to eject a person carrying a firearm, whether it does so pursuant to a sensitive place designation or a church policy. Either way, someone will have to call the cops. And if the State has determined that places of worship must be designated as sensitive places because criminal trespass law is not enough to keep out guns, then the decision to regulate places of worship more assiduously than other locations amounts to an unequal pursuit of the interest in preventing gun violence. Such an approach is understandable, but unconstitutional....

Reuters reports on the decision.

Suit Seeks Historic Preservation Funds for Churches

Two historic churches have filed suit in a New Jersey federal district court challenging Morris County's exclusion of properties currently used for religious purposes from receiving Historic Preservation funds from the county. Plaintiffs contend that recent U.S. Supreme Court cases invalidate an earlier state Supreme Court decision barring churches from participation in such funding programs. The complaint (full text) in Mendham Methodist Church v. Morris County, New Jersey, (D NJ, filed 4/28/2023), alleges in part:

In 2018 ... the New Jersey Supreme Court concluded that the Religious Aid Clause of the New Jersey Constitution bars state and local governments from providing grants to preserve the architecture of historic churches. Freedom From Religion Found. v. Morris Cnty. Bd. of Chosen Freeholders ...

This is unconstitutional discrimination on the basis of religion: States and local governments that choose to provide a generally available public benefit—such as historic preservation grants—cannot exclude an otherwise-qualified applicant solely because the applicant happens to be a house of worship. See Carson v. Makin, 142 S. Ct. 1987, 1996 (2022).... ;Espinoza v. Mont. Dep’t of Revenue...., 140 S. Ct. 2246, 2262 (2020)....

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

Virginia Legislature Passes Law Protecting Houses of Worship from Discriminatory Restrictions During Emergencies

Yesterday, the Virginia General Assembly gave final passage to HB 2171 (full text). The bill, which is a reaction to restrictions imposed during the COVID pandemic, provides:

No rule, regulation, or order issued by the Governor or other governmental entity pursuant to this chapter shall impose restrictions on the operation of a place of worship that are more restrictive than the restrictions imposed on any other business, organization, or activity.

Virginia Mercury, reporting on the bill's passage, says that Gov. Glenn Youngkin is expected to sign the bill. It quotes a proponent of the bill as saying: "This bill means the governor’s not gonna open liquor stores and close churches."

Results From Election Day on Ballot Issues of Interest

Here are Tuesday's vote results for the ten ballot issues of interest to those following law and religion developments.  More details and updated information are available at Ballotpedia.

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability." Losing 49.56%- 50.44% with 97% of precincts reporting.

California Proposition 1: Right to Reproductive Freedom Amendment. Passed 65%- 35%.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license. Defeated 39%- 61%.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion. Defeated 48%- 52%.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom. Passed 57%- 43%

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion. Losing 48%- 52% with 85% of precincts reporting.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin. Winning 57%- 43% with 77% of precincts reporting.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly. Passed 63%- 37%.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest. Passed 77%- 23%.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations. Defeated 45%- 55%.

Ten Issues of Interest Are on Today's Ballots Across the Country

Today voters in ten states will be voting on ballot measures that relate to religious institutions, reproductive rights, clergy, religious freedom or religious and LGBTQ discrimination.  Here are summaries of each measure with links to fuller explanations on Ballotpedia:

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability."

California Proposition 1: Right to Reproductive Freedom Amendment.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom.

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations.

Suit Challenges New York Ban on Firearms in Houses of Worship

Suit was filed this week in a New York federal district court challenging the constitutionality of New York's ban on carrying firearms in houses of worship. The complaint (full text) in His Tabernacle Family Church, Inc. v. Nigrelli, (WD NY, filed 11/3/2022) alleges that the ban violates the free exercise, Establishment Clause, Second Amendment, and equal protection rights of a church and its pastor.  The complaint says in part:

S51001 forbids Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.....

[S51101]  subjects houses of worship to disfavored treatment while treating comparable secular organizations, such as retail stores or restaurants, more favorably than those offering religious exercise....

A church’s authority over who may enter the sanctuary and under what circumstances lies at the very heart of “the general principle of church autonomy” protected by the Establishment Clause.....

First Liberty issued a press release announcing the filing of the lawsuit. Last month, in another case, the same court issued a temporary restraining order barring enforcement of this statutory provision. (See prior posting.)

NY Gun Ban at Places of Worship Violates 2nd Amendment

In Hardaway v. Nigrelli, (WD NY, Oct. 20, 2022), a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at "any place of worship or religious observation." The suit was filed by two clergy who allege that as leaders of their churches they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment, saying in part:

Here, the state cites to a handful of enactments in an attempt to meet its "burden" to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation.... The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments....

[T]he Nation's history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state. The right to self-defense is no less important and no less recognized at these places.

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

UK Government Issues Suggestions For Places of Worship To Take Part In Mourning For Queen

In Britain last Friday, the government's Department for Levelling Up, Housing and Communities issued National Mourning Period: Guidance for Faith and Belief Groups and Places of Worship. It contains liturgical and operational suggestions for religious venues that wish to take part in the Period of Mourning for Queen Elizabeth II. Law & Religion UK has links to additional resources.

Non-Profits Are Seeking IRS Classification As "Churches"

Both Baptist News Global and ProPublica have recently published lengthy investigative articles on the growing number of non-profit entities that have sought classification by the IRS as a "church" or "association of churches" or an "integrated auxiliary of a church." this exempts them from filing the annual Form 990 required of other non-profits. Form 990 disclose income, expenditures and compensation of officers, directors and key employees.