Court Says Drive-In Church Services Are Reasonable Compromise For COVID-19 Limits

In First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, (ND MS, April 24, 2020), a Mississippi federal district court created guidelines on the extent to which states or localities can limit church services in efforts to prevent the spread of COVID-19. The suit was brought by a church whose indoor Easter service was dispersed by police. The court had previously had before it a widely publicized case from Greenville, MS in which a city sought to ban even drive-in church services. (See prior posting.) In deciding the Holly Springs case, the court said in part:

For reasons which should be obvious, this court is considerably less sympathetic to claims by a church which sought to hold indoor church services involving at least thirty-five congregants than it is to the claims by the church in the Greenville case, which sought to hold services in which the congregants stayed in their vehicles with the windows closed....

In its brief, the Church insists that its members practice “social distancing” during indoor church services, but this strikes this court as being a rather hollow guarantee, given the inherent difficulties involved in policing meetings behind closed doors and the inherent medical uncertainties with regard to what a safe Covid-19 distance actually is in the context of individuals who may be sitting together in the same room for an hour or more....

In the court’s view, allowing drive-in church services involving congregants sitting in vehicles whose windows are closed represents the practical middle ground upon which concerns about religious freedom and the safety of the community may co-exist....

At the same time, this court wishes to be clear that it does not regard the practice of “drive-in” church services as being risk-free. While it may be imagined that many attendees of such services would be family members who have already been exposed to each other, that will not always be the case. Indeed, it seems quite likely that, as with regular church services, many such attendees will be elderly parishioners who require the assistance of friends or non-resident family members to take them to the service.... [T]he Covid-19 virus disproportionately kills elderly individuals, and it may therefore be assumed that, if the holding of such “drive-in” services becomes a nationwide trend, that a significant (and possibly large) number of deaths will result. This court believes that preachers and parishioners would be well advised to take this into consideration when deciding whether or not to hold or attend such services.

While this court therefore does not regard the public policy considerations in this context as being one-sided, the First Amendment right to Free Exercise of religion is sufficiently important that some reasonable accommodations must be made for it. This court concludes that the allowing of drive-in services, with windows closed or slightly cracked open, represents a reasonable accommodation in this context, and it finds a reasonable likelihood ... that allowing such drive-in services is legally required, under either state or federal law.

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.

5th Circuit Strikes Down Mississippi's Anti-Abortion Law

The U.S. 5th Circuit Court of Appeals yesterday struck down a Mississippi statute that prohibits abortions, with limited exceptions, after 15 weeks' gestational age.  In Jackson Women's Health Organization v. Dobbs, (5th Cir., Dec. 13, 2019), Judge Higginbotham writing for himself and Judge Dennis said in part:

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.

Judge Ho filed a separate opinion concurring in the judgment, but criticizing the district court's opinion.  He said in part:

[W]hat distinguishes abortion from other matters of health care policy in America—and uniquely removes abortion policy from the democratic process established by our Founders—is Supreme Court precedent. The parties and amici therefore draw our attention not to what the Constitution says, but to what the Supreme Court has held.

A good faith reading of those precedents requires us to affirm..... I am nevertheless deeply troubled by how the district court handled this case. The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.

UPI reports on the decision.

Sex Abuse Victims Sue Claiming Unfair Settlements By Catholic Church

AP reports on a lawsuit filed by two African-American men who are cousins and who allege that as grade schoolers in a Mississippi Catholic school they were repeatedly abused by two Franciscan bothers:

Two impoverished Mississippi men who say they were sexually assaulted by Franciscan missionaries filed a federal lawsuit Thursday claiming that Catholic officials pressured them into signing settlements that paid them little money and required them to remain silent about the alleged abuse.

The lawsuit, filed in New York, claims the church officials drew up the agreements a year ago to prevent the men from telling their stories or going to court — a violation of a 2002 promise by American bishops to abandon the use of nondisclosure agreements, as part of an effort to end the cover-up of sexual abuse within the church.

Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In McRaney v. North American Mission Board of the Southern Baptist Convention, (ND MS, April 22, 2019), a Mississippi federal district court dismissed on ecclesiastical abstention grounds a defamation suit by a the former executive director of the Baptist Convention of Maryland and Delaware (BCMD).  Plaintiff contended that the North American Mission Board defamed him to BCMD and tortiously interfered with his employment contract.  The court said that resolution of plaintiff's claims would require it to determine whether the Mission Board had a valid religious reason for its actions-- and "That the court cannot do."  Baptist Press reports on the decision.

Court Invalidates Mississippi's Restrictive Ban On Abortions

In Jackson Women's Health Organization v. Currier, (SD MS, Nov. 20, 2018), a Mississippi federal district court held unconstitutional a recently enacted Mississippi statute that prohibits most abortions after 15 weeks gestation.  The court said in part:

[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

This Court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.

Bustle reports on the decision.

Mississippi Governor Signs Ban on Abortions After 15 Weeks; Court Challenge Filed

Mississippi Governor Phil Bryant yesterday signed into law HB 1510, the Gestational Age Act (full text) (bill status history). It prohibits abortions after 15 weeks of gestation except in the case of medical emergency or severe fetal abnormality. There are no exceptions for rape or incest. Violations of the ban are defined as unprofessional conduct by a physician and may lead to suspension or revocation of the person's license to practice medicine. New York Times reports that the only abortion clinic in Mississippi quickly filed a complaint (full text) (press release) in Mississippi federal district court challenging the constitutionality of the law.

UPDATE: On March 20, a Mississippi federal district court granted a temporary restraining order against enforcement of the new law. (AP)

Ministerial Exception Does Not Apply When Defendant Is Not Plaintiff's Employer

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (ND MS, Jan. 18, 2018), a Mississippi federal district court rejected ministerial exception and ecclesiastical abstention defenses in a suit alleging intentional interference with business relationships, defamation and intentional infliction of emotional distress. At issue was the termination of plaintiff, the executive director of the General Mission Board of the Baptist Convention for Maryland/ Delaware, at the insistence of defendant NAMB. The court held that the ministerial exception doctrine does not apply when the defendant in a lawsuit is not the employer of plaintiff. The court also held that adjudicating plaintiff's claims will not necessarily involve examination of church doctrine or internal church governance. The Message reports on the decision.

Supreme Court Refuses Review In Standing Case Challenging Mississippi's Conscience Law

The U.S. Supreme Court today denied certiorari in Barber v. Bryant, (Docket No. 17-547, cert. denied 1/8/2018) and Campaign for Southern Equality v. Bryant, (Docket No. 17-642, cert. denied 1/8/2018). (Order List.)  In the companion cases, the U.S. 5th Circuit Court of Appeals dismissed challenges to Mississippi's Conscience Protection Act for lack of standing. The law, Mississippi's HB 1523, protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth. (See prior posting.) An en banc rehearing was denied by the 5th Circuit, over the dissent of two judges.  National Law Journal reports on the Supreme Court's action which leaves the law in effect.

Mississippi Suit On Gay Marriage Recusals Is Reopened

In June, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a challenge to Mississippi's broad Conscience Protection Act. (See prior posting.) In October, an en banc rehearing was denied.  In light of this, yesterday a Mississippi federal district court in Campaign for Southern Equality v. Bryant, (SD MI, Oct. 27, 2017), issued an order (full text) reopening a challenge to the law insofar as it allows county clerks to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage.  The Order also authorized plaintiffs to serve interrogatories to determine how many Clerk's Offices have employees that have sought to recuse themselves, and how the recusals are handled. AP reports on the order.

Over Dissent, En Banc Rehearing Denied On Mississippi Conscience Protection Act

In Barber v. Bryant, (5th Cir., Sept. 29, 2017), the U.S. 5th Circuit Court of Appeals by a vote of 12-2 refused to grant an en banc rehearing in a challenge to a Mississippi law (HB 1523) that protects from discriminatory state action anyone who acts on religious or moral beliefs relating to traditional marriage, sex outside of marriage, or transgender rights.  In June, a 3-judge panel held that plaintiffs lack standing to challenge the law. (See prior posting.) Two judges dissented from the denial of an en banc rehearing in an opinion that argues:

... the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents. The panel opinion misconstrues and misapplies the Establishment Clause precedent, and, as explained below, its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.

5th Circuit: Plaintiffs Lack Standing to Challenge Mississippi's Anti-LGBT Conscience Law

In Barber v. Bryant, (5th Cir., June 22, 2017), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  The district court had concluded that the statute violates the Establishment Clause and Equal Protection Clause. (See prior posting.) However the 5th Circuit concluded that plaintiffs had alleged nothing more than "a general stigmatic injury," and this is insufficient for standing. MS News Now reports on reactions to the decision.

Suit Challenges Funeral Home's LGBT Discrimination

A suit filed in March in a Mississippi state trial court against a Picayune, MS funeral home attracted attention yesterday after Lambda Legal issued a press release describing the case.  The complaint (full text) in Zawadski v. Brewer Funeral Services, Inc., (MS Cir. Ct., filed 3/7/2017), alleges that after the death of Robert Huskey, defendant funeral home backed out of its agreement to provide post-mortem transportation and cremation services for his body because it learned that he was a gay man whose next of kin was his lawful husband.  The funeral home's only explanation was that it did not "deal with their kind." The suit alleges infliction of emotional distress, breach of contract and misrepresentation.  Reporting on the lawsuit, WCYB News points out that Mississippi's Protecting Freedom of Conscience from Government Discrimination Act, which protects the refusal to provide goods or services on the basis of various religious and moral beliefs, has been enjoined while its constitutionality is litigated. The 5th Circuit heard arguments in the case last month. (See prior posting.)

5th Circuit Hears Arguments On Mississippi's Conscience Protection Law

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments (audio of full arguments) in Barber v. Bryant.  In the case, a Mississippi federal district court issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth. (See prior posting.)  Buzzfeed has extensive coverage of the oral arguments.

Court Refuses Stay Pending Appeal In Challenge To Mississippi Anti-LGBT Conscience Law

In Barber v. Bryant, (SD MS, Aug. 1, 2016), a Mississippi federal district court refused to stay pending appeal its earlier order granting a preliminary injunction against Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act. (See prior posting.)  The Act protects a wide variety of conduct reflecting disapproval of, or refusals to provide goods and services to, members of the LGBT community.  The court rejected movants' claim that they are likely to succeed on the merits of their appeal that defends the law. Responding to movants' argument that "HB 1523 is akin to federal exemption laws protecting pacifists and abortion opponents," the court said:

issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to “tinker with the machinery of death,” their animus exceeds anything seen in Romer, Windsor, or the marriage equality cases.

Buzz Feed reports on the decision.

Mississippi AG Will Not Appeal Injunction Against Conscience Protection Act, Despite Governor's Appeal of Decision [UPDATED]

In a strong statement (full text) issued yesterday, Mississippi state Attorney General Jim Hood announced that he will not appeal a federal district court's injunction against enforcing HB 1523 , Mississippi's anti-LGBT Conscience Protection Act, (See prior posting.) Hood said in part:

First, both HB 1523’s critics and supporters acknowledge that the bill did not change state or federal law. For example, there is no state law requiring pastors to marry same-sex couples, and I doubt that the Legislature would ever pass one.  Moreover, the Mississippi Legislature has already passed the Religious Freedom Restoration Act which protects a person’s right to exercise his or her religious beliefs.  HB 1523’s critics and supporters also recognize that HB 1523 cannot overturn or preempt federal law.  As acknowledged by our Governor, HB 1523 is not a defense to a federal lawsuit.

Simply stated, all HB 1523 has done is tarnish Mississippi’s image while distracting us from the more pressing issues of decaying roads and bridges, underfunding of public education, the plight of the mentally ill and the need to solve our state’s financial mess....

Second, to appeal HB 1523 and fight for an empty bill that dupes one segment of our population into believing it has merit while discriminating against another is just plain wrong. I don’t believe that’s the way to carry out Jesus’ primary directives to protect the least among us and to love thy neighbor....

Misinformation that, without HB 1523, pastors, churches, bakers, wedding planners or other private service providers will be forced to violate their religious beliefs has been used repeatedly to frighten our citizens into supporting the dogmatic politicians who use religion for political gain.

Hood added however that depending on the wording of the final order he might appeal a separate federal court decision extending the injunction in an earlier same-sex marriage case to all court clerks who were not parties.(See prior posting.)

UPDATE: It should be noted that Mississippi Governor Phil Bryant has already filed a Notice of Appeal in the case, so presumably he will pursue the appeal using counsel other than the Attorney General.

Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law

In Barber v. Bryant, (SD MS, June 30, 2016), a Mississippi federal district court in a stinging 60-page opinion, issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The new law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.  The court concluded that the law, which would have gone into effect today, violates both the Establishment Clause and the Equal Protection Clause. Summarizing the history of the bill, the court said:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.

The court summarized its conclusions:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....

Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others....  It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).

BuzzFeed and the Washington Post have additional coverage of the opinion.

Court Moves To Invalidate Mississippi's Law For Recusal By County Clerks Who Object To Same-Sex Marriage

In a decision issued yesterday, a Mississippi federal district court took the first step toward issuing an injunction that would have the effect of preventing county clerks in Mississippi from relying on the provisions in Mississippi HB 1523 that allow them to recuse themselves from issuing marriage licenses to same-sex couples because of religious or moral objections to same-sex marriage. (See prior posting.)  The decision came in an attempt to reopen and expand the injunction issued by the federal district court in 2015 baring enforcement of Mississippi's statutory and constitutional provisions barring same-sex marriage.

In Campaign for Southern Equality v. Bryant, (SD MS, June 27, 2016), the court explained:

The constitutional violation this case addressed in 2014 and 2015 was whether the Fourteenth Amendment permitted a State to treat same-sex couples differently than opposite-sex couples with respect to the issuance and recognition of marriage licenses.

Today’s motion concerns the same issue. In HB 1523 § 3(8)(a), the State is permitting the differential treatment to be carried out by individual clerks.***

Section 3(8)(a) is a significant change sufficient to reopen this case and reconsider the language of the Permanent Injunction....  The undersigned, though, is not persuaded that the 81 non-party Circuit Clerks are presently bound by the Permanent Injunction.... [T]he better course of action is to ensure that the remaining 81 Circuit Clerks have received actual notice of a Permanent Injunction that binds them before they are held accountable for it. The parties shall confer on an appropriate procedure for providing that notice....

No one has argued that the Permanent Injunction is invalid, but the briefing now suggests that it lacks all necessary parties. Judicial economy may be served by an Amended Permanent Injunction which enjoins § 263A of the Mississippi Constitution and Mississippi Code § 93-1-1(2), incorporates appropriate language from Rule 65, and clarifies that the persons it binds must issue marriage licenses “on the same terms and conditions as opposite-sex couples.” Obergefell, 135 S. Ct. at 2605....

The point of adding Obergefell’s language is simple: the Supreme Court’s ruling will be enforced. Obergefell “is the law of the land and, consequently, the law of this circuit.” 791 F.3d at 627. Mississippi’s elected officials may disagree with Obergefell, of course, and may express that disagreement as they see fit – by advocating for a constitutional amendment to overturn the decision, for example. But the marriage license issue will not be adjudicated anew after every legislative session. And the judiciary will remain vigilant whenever a named party to an injunction is accused of circumventing that injunction, directly or indirectly.

BuzzFeed reports on the decision.

Court Denies Preliminary Injunction Against Mississippi's Conscience Protection For County Clerks

In Alford v. Moulder, (SD MS, June 20, 2016), a Mississippi federal district court denied a preliminary injunction in a suit by a same-sex couple who are challenging Mississippi's recently enacted Freedom of Conscience Law, HB 1523.  The suit specifically challenges provisions in the law that allow county clerks to recuse themselves on religious or moral grounds from issuing marriage licences. (See prior posting.) The court held that plaintiffs failed to show that injury to them is "imminent" since they merely allege that they plan to apply for a marriage license sometime within the next three years.  Plaintiffs immediately filed a Motion for Reconsideration.

Meanwhile, the same judge heard oral arguments yesterday in a separate case that is also challenging HB 1523.  AP reports that in this suit, plaintiffs are arguing that provisions allowing clerks to recuse themselves in favor of another employee issuing the license could create public humiliation for a same-sex couple when they apply for a license.  "There can't be separate-but-equal marriage. There can't be Jim Crow kind of marriage," the couples' attorney told the court.  Four separate cases challenging HB 1523 have been filed, and the judge will hear oral arguments in the remaining two later this week.

Another Challenge Filed To Mississippi's Freedom of Conscience Law

As reported by AP, on Friday a third lawsuit was filed challenging Mississippi's House Bill 1523, the Protecting Freedom of Conscience From Government Discrimination Act. Mississippi Center for Justice announced the filing of the federal lawsuit which was brought by a group of clergy, community leaders, activists and a Hattiesburg church.  The complaint (full text) contends:

With the passage and approval of that bill, the Legislature and the Governor breached the separation of church and state, and specifically endorsed certain narrow religious beliefs that condemn same-sex couples who get married, condemn unmarried people who have sexual relations, and condemn transgender people.

Last month the ACLU filed a lawsuit challenging the new law (see prior posting) and plaintiffs in a suit that helped bring down the barriers to same-sex marriage in Mississippi have moved to challenge the law by reopening their lawsuit.