Negligent Violation of Inmate's Religious Dietary Needs Did Not Violate 1st Amendment

In Mbonyunkiza v. Beasley, (8th Cir., April 24, 2020), the U.S. 8th Circuit Court of Appeals held:

absent evidence that an underlying prison regulation or policy violates the Free Exercise Clause, evidence that a correction official negligently failed to comply with an inmate’s sincerely held religious dietary beliefs does not establish a Free Exercise Clause claim under §1983.

In the case, a Muslim inmate claimed that four times in 257 days, prison kitchen staff served him meals containing pork products. In rejecting plaintiff's claim, the court said in part:

[T]he Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion.

By contrast, in this case NCF’s food policies affirmatively accommodate the beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not challenge those policies. Rather, his Supplemental Complaint asserts that defendants are liable in damages because they did not properly implement those policies on certain occasions.

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.)

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.

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.

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.

1st Circuit OKs "So Help Me God" In Naturalization Oath

In Perrier-Bilbo v. United States, (1st Cir., April 3, 2020), the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. Plaintiff, a French citizen, was offered the options of just not repeating those words during the ceremony or of having a private ceremony where the oath would be administered without that phrase. She rejected these as inadequate.

The court denied plaintiff's Establishment Clause challenge, applying the test used by the Supreme Court in American Legion v. American Humanist Association, saying in part:

We follow the Supreme Court's most recent framework and apply American Legion's presumption of constitutionality to the phrase "so help me God" in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath. And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or "deliberate disrespect" by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

Rejecting Plaintiff's Free Exercise claim, the court said in part:

We do not second-guess the sincerity of Perrier-Bilbo's beliefs or her feeling of distress upon hearing the phrase at issue. But even if the phrase offends her, offense "does not equate to coercion," Town of Greece, 572 U.S. at 589, and the Free Exercise Clause does not entitle her to a change in the oath's language as it pertains to others....

The court rejected Plaintiff's argument under RFRA, saying in part:

While she might find the options offered by the Government subjectively burdensome, however, the district court was right to conclude that not every imposition or inconvenience rises to the level of a "substantial burden."

The court also rejected equal protection and due process challenges.  Judge Barron filed a concurring opinion. Free Thinker blog discussed the decision.

New Jersey's Aid In Dying Act Is Upheld

In Petro v. Grewal, (NJ Super., April 1, 2020), a New Jersey state trial court dismissed a suit challenging the constitutionality of New Jersey's Medical Aid in Dying for the Terminally Ill Act.  Plaintiffs challenged the law on numerous grounds, including under the free exercise clause. First the court held that plaintiffs lack standing to challenge the law, saying in part:

Their deeply felt religious, ethical or professional objections to the Act do not suffice to establish standing, even under New Jersey's liberal standard.

The court however went on to also reject plaintiffs' claims on the merits. In part of its opinion, the court rejected plaintiffs' free exercise objections to the obligation of a doctor who refuses to provide aid in dying to transfer health care records to a patient's new doctor. The court said that the law is a neutral law of general applicability, and that the obligation to transfer records is "minimally burdensome."  North Jersey.com reports on the decision.

Suit Challenges Colorado Stay-At-Home Order Partly On Free Exercise Grounds

A suit was filed on Monday by a pro se plaintiff in a Colorado federal district court seeking a preliminary injunction to bar enforcement of the COVID-19 stay-at-home orders issued by the state and local officials.  The complaint (full text) in Lawrence v. State of Colorado, (D CO, filed 3/30/2020) alleges in part:

As a result of the Orders listed above that restrict the gathering of more than ten people at a time, the plaintiff's parish has ceased conducting weekly Mass, has ceased offering the Eucharist, and has ceased hearing confessions. The defendants' conduct has impaired the plaintiff's ability to freely exercise his religious faith, in violation of the First Amendment.

Colorado Politics reports on the lawsuit.

7th Circuit Upholds Prison Rule Limiting Off-Bunk Prayers

In Larry v. Goldsmith, (7th Cir., March 30, 2020), the U.S. 7th Circuit Court of Appeals upheld as reasonably related to a legitimate penological interest a prison rule that prohibits inmates from praying off their bunks after 9:00 pm. The policy was challenged by a Muslim inmate who was disciplined for praying next to his bunk at a prohibited time.

Pastor Arrested For Holding Church Services In Violation of Health Department Order

AP reports that in Hernando County,  Florida, police arrested Tampa (FL) megachurch pastor Rodney Howard-Browne for holding two Sunday church services with hundreds of people in violation of a county emergency health department order to limit all gatherings to less than ten people. The pastor turned himself into authorities and he was released on $500 bond. The church claims it enforced the 6-foot distancing rule between families and took other precautions as well. Howard-Browne has said the church is an essential services and suggested he would fight the issue in court. [Thanks to Tom Rutledge for the lead.]

Suits In NY and Texas Say Stay-At-Home Orders Infringe Religious Rights

New York Post reports that a lawsuit was filed last Friday in a New York federal district court against the state of New York and Gov. Andrew Cuomo challenging the constitutionality of Cuomo's stay-at-home order imposed to limit the spread of COVID-19. Among other things, plaintiff, a Brooklyn lawyer, alleges that the ban violates his rights to free speech and to observe his Jewish faith.

A mandamus action filed in the Texas Supreme Court similarly challenges a Harris County, Texas stay-at-home order. Houston Chronicle reports that the challenge filed by three pastors and a conservative Republican activist claims that the order violates the 1st Amendment by ordering the closure of churches and also violates the Constitution by failing to classify gun shops as essential businesses.

UPDATE: Here is the full text of the complaint in the Texas case, In re Hotze, (TX Sup. Ct., filed 3/30/2020).

UPDATE 2: Front Porch News reports on an April 21 updated version of Texas' “Guidance to Houses of Worship During the COVID-19 Crisis.”

Sioux Tribes Get Delay In Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 25, 2020), the D.C. federal district court held that the Army Corps of Engineers needs to prepare an environmental impact statement on the proposed Dakota Access Pipeline route under Lake Oahe in North and South Dakota.  Sioux tribes rely on Lake Oahe water for, among other things, sacred religious and medicinal practices. Inside Climate News reports on the decision.