Local Wisconsin COVID-19 Orders Challenged On 1st Amendment Grounds

A lawsuit was filed this week in a Wisconsin federal district court against ten local public health officers and a number of other local and state officials seeking to prevent enforcement of local COVID-19 Emergency Orders after the Wisconsin Supreme Court invalidated a statewide emergency order because it exceeded legislative authority and was improperly adopted. (See prior posting.) This week's lawsuit was brought by seventeen plaintiffs, one of whom is a pastor.  The complaint (full text) in Yang v. Powers, (ED WI, filed 5/20/2020) alleges in part that the local orders violate plaintiffs' free exercise rights and the Establishment Clause, as well as their freedom of assembly and equal protection rights. Urban Milwaukee reports on the lawsuit.

CDC Withholds Guidance On Reopening Of Churches

Washington Post reported yesterday:

The CDC this week issued a detailed road map for reopening schools, child-care facilities, restaurants and mass transit. On Tuesday night, the agency issued additional guidance in the form of “health considerations” for summer camps, including overnight camps, and youth sports organizations and colleges.

But there are currently no plans to issue guidance for religious institutions, according to three administration officials who spoke on the condition of anonymity to discuss policy decisions....

In the end, the decision to hold back reopening guidance for religious institutions came from some White House and coronavirus task force officials who did not want to alienate the faithful and believed that some of the proposals, such as limits on hymnals, the size of choirs or the passing of collection plates, were too restrictive, according to two administration officials.

Maryland Stay-At-Home Orders Upheld Over Free Exercise and Other Challenges

In Antietam Battlefield KOA v. Hogan, (D MD, May 20, 2020), a Maryland federal district court rejected several constitutional challenges to Maryland Governor Larry Hogan's COVID-19 stay-at-home orders. Among the plaintiffs were several pastors and a deacon who complain that the orders bar them from holding religious services with more than 10 people, and from attending weddings and funerals in person. Rejecting plaintiffs' free exercise claims, the court said in part:

This court agrees with the reasoning of the many courts that have found similar orders to be neutral and generally applicable.... The Governor’s order is neutral because it proscribes conduct (gatherings of more than 10 people) without regard to whether that conduct is religiously motivated or not. There is no indication that the order is meant to target conduct because of its religious motivation.

The order is also generally applicable. The plaintiffs argue that the order is underinclusive because it still allows some businesses to “accommodate large crowds and masses of persons,” such as Lowe’s and Walmart.... But plaintiffs have not shown that these activities are comparable to religious services. First, these businesses are part of the critical infrastructure, according to the U.S. Department of Homeland Security’s Cybersecurityand Infrastructure Security Agency.... and, unlike religious services, they cannot operate remotely...

Second, the plaintiffs have not shown that allowing essential businesses to remain open is “nonreligious conduct that endangers these interests in a similar or greater degree than” religious services....

Daily Record reports on the decision.

Defamation Suit Dismissed Under Ecclesiastical Entanglement Doctrine

In Lippard v. Holleman, (NC App., May 19, 2020), the North Carolina Court of Appeals affirmed the dismissal of a defamation suit brought by a former church pianist and vocalist against the Baptist church's pastor and its minister of music. A dispute over assignment of a vocal solo had escalated leading to plaintiff's dismissal. Plaintiff sued over various statements made in connection with her termination. The court held:

... [D]etermining the truth or falsity of Defendants’ alleged defamatory statements—where the content of those statements concerns whether Plaintiffs complied with [Diamond Hill Baptist Church's] practices—would require us to interpret or weigh ecclesiastical matters, an inquiry not permitted by the First Amendment....

We affirm the trial court’s order on the ground that all statements Plaintiffs challenge are barred by the ecclesiastical entanglement doctrine.

Chief Justice McGee concurred in part and dissented in part.  [Thanks to Will Esser via Religionlaw for the lead.]

DOJ Says California Is Discriminating Against Places of Worship In Reopening Plan

As reported by the Los Angeles Times, the Department of Justice Civil Rights Division yesterday sent a letter (full text) to California Governor Gavin Newsom complaining about discriminatory treatment of houses of worship in the state's COVID-19 Reopening Plan. The letter says in part:

Places of worship are not permitted to hold religious services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are permitted to operate with social distancing....

We believe... that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.

Labor Department Issues New Guidance On Religious Liberty Protections

The U.S. Department of Labor announced last week (May 15) that it has issued a directive and a guidance to advance religious liberty protections. the directive, among other things, instructs DOL to:

Ensure religious organizations are given the opportunity to compete equally with non-religious organizations for Federal financial assistance at the Federal and State levels.

The Guidance (full text) implements Executive Order 13798 in connection with federal grants administered by DOL. The Guidance says in part:

Religious organizations that receive DOL financial assistance retain their programmatic independence from Federal, State, and local governments and may continue to carry out their missions and maintain their religious character. This autonomy includes, among other things, the right to use the organizations’ facilities to provide DOL-supported social services without removing or altering religious art, icons, scriptures or other religious symbols, and the right to govern themselves and to select board members on a religious basis. Faith-based organizations, like all organizations receiving DOL financial assistance, must not use direct DOL financial assistance to support any explicitly religious activities... [including] for example, worship, religious instruction, and proselytization....

If an organization conducts explicitly religious activities using non-DOL funds and also offers social service programs using direct DOL support, then that organization must offer the explicitly religious activities at a time or in a place that is separate from the programs receiving direct DOL support....

Catholic School Sues For More Adequate State Bus Transportation

On Friday, a pre-K through 8th grade Catholic school in Madison, Wisconsin announced that it has filed suit against the Madison, Wisconsin Metropolitan School District to obtain state-funded bus transportation that meets its current class starting time.  The complaint (full text) in St. Maria Goretti Congregation v. Madison Metropolitan School District, (WI Cir. Ct., filed 5/15/2020), alleges in part:

Chapter 121 of the Wisconsin Statutes requires school districts ... to provide and fund transportation services to both public and private-school students in their boundaries, with “reasonable uniformity” in the transportation offered.... [T]he District provides busing to its own students that drops them off reasonably before the start of their school day. Yet, despite its plain statutory obligations, the District has adamantly refused to provide similar busing for the upcoming 2020–21 term to the students of St. Maria Goretti School.... Instead, the District has repeatedly informed St. Maria Goretti that it would only provide and fund busing that drops off its students 70 minutes after its current start time. So, the District is forcing St. Maria Goretti to substantially change its start and end times to receive busing, devastating almost every aspect of the school, including its Catholic mission; or to accept manifestly inadequate services that drops off its students well after the beginning of the school day; or to pay for busing services itself, despite the substantial burdens this would impose. This unequal, unjust treatment violates Chapter 121.

The school also filed a 47-page brief (full text) in support of its motion for a temporary injunction or writ of mandamus.

Tel Aviv Mayor Sues New Transportation Minister For Libel Over Claims About Tefillin Stands

Yeshiva World reported yesterday on a libel lawsuit filed in Israel by Tel Aviv Mayor Ron Huldai against newly-appointed Transportation Minister Miri Regev.  The suit, filed in Tel Aviv- Jaffa Magistrate's Court, seeks damages equivalent to $142,000 (US). According to the report:

The lawsuit refers to public statements Regev made at a February campaign event, at which she accused Huldai of coming out against Judaism and freedom of religion by banning Tel Aviv residents from putting on tefillin.

Huldai says that in February, the city of Tel Aviv banned all kinds of stands (including tefillin stands which urge passers-by to put on phylacteries) within 100 meters of schools and other public buildings that serve minors. He says that Regev intentionally distorted the facts and refused to correct her statements. He says that he had no input into the decision and that it did not single out tefillin stands.

Court Refuses To Dismiss Title VII Suit Because Ministerial Exception Unclear On Facts

In Tucker v. Faith Bible Chapel International, (D CO, May 18, 2020), a Colorado federal district court refused to dismiss a Title VII and state common law complaint brought against Faith Christian Academy. The suit was filed by Gregory Tucker who was a science teacher and chaplain/ director of student life at Faith Christian Academy.  Gregory was fired after he organized a controversial chapel service titled "Race and Faith." Defendant contends that the "ministerial exception" doctrine bars the lawsuit. The court said in part:

I find that whether Mr. Tucker was a “minister” within the meaning of the “ministerial” exception” is genuinely disputed on the evidence presented. Defendant’s position is substantially grounded in the wording of documents, most notably the extension agreement that characterized Mr. Tucker as “chaplain” and the handbook which purports to make all teachers and other full-time employees “ministers.” To be sure, those documents are relevant to the issue. But the substance of Mr. Tucker’s position turns on the totality of the facts and circumstances of his employment, and he has come forward with facts that, if believed by the jury, could rationally support the opposite conclusion.

France's Council of State Orders Lifting of COVID-19 Ban On Worship Services

Yesterday, France's highest court, the Council of State, ruled that within 8 days the government must lift its COVID-19 ban on gatherings at houses of worship. Currently only funerals, with no more than 20 people in attendance may be held in houses of worship.  Reporting on the decision, Euronews said:

The judge highlighted that the government authorised public gatherings of up to 10 people in other settings and that as such the blanket ban "is disproportionate to the objective of preserving public health."

The ruling adds that freedom of worship is a fundamental right which "includes among its essential components the right to participate collectively in ceremonies, in particular in places of worships" and that the government's decree "constitutes a serious and manifestly unlawful interference with it".

It called on the government to take measures that are "strictly proportionate to the health risks incurred".

[Thanks to Eric Rassbach via Epidemiclaw for the lead.]

RFRA Defense Rejected In Possession of Firearms Case

Inner City Press reports on a sentencing decision handed down yesterday in a New York federal district court in U.S. v. Cruz. The trial court judge rejected defendant's Religious Freedom Restoration Act defense in his sentencing hearing for illegal possession of a loaded firearm. Defendant's counsel argued that defendant's possession of the firearm was "solely for use in the ceremonial practice of his religion, Palo Mayombe. Firearms hold only symbolic meaning in the ritual practice of the religion and involve no violence or threat of violence." The judge sentenced defendant to 21 months in prison followed by three years of supervised release.

Oregon Trial Court Enjoins Enforcement of State's COVID-19 Orders In Suit By Churches

In Elkhorn Baptist Church v. Brown, (OR Cir. Ct., May 18. 2020), an Oregon state trial court granted a preliminary injunction against further enforcement of the governor's COVID-19 emergency orders in a suit brought by 16 churches and a number of other plaintiffs who complain that the order prevents them from holding church services.  The court held that under the relevant legislation invoked by the governor, a state of emergency could be declared only for up to 28 days.

[W]hen the Governor utilized the provisions of ORS 433.441 in her executive order, she triggered all the provisions of ORS 433.441 including the time restrictions in ORS 433.441(5). By doing so, the executive order became null and void beyond the maximum 28-day time period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are also null and void....

The Governor has an enormous responsibility to protect the lives of the citizens of our state balanced against the citizens’ constitutional rights to freedom of religion which includes how he or she chooses to worship. The Governor’s orders are not required for public safety when Plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the Governor have been authorized to do.

Reporting on the decision, The Oregonian says that the governor's office has filed an appeal with the Oregon Supreme Court.

UPDATE: According to a statement on Twitter by Governor Brown, late last night the Oregon Supreme Court reinstated her emergency orders while the state Supreme Court hears arguments in the appeal.

British Government Task Force To Develop Rules For Reopening of Houses of Worship

In Britain last Friday, the Ministry of Housing, Communities and Local Government announced a new interfaith task force to develop a plan for the phased and safe reopening of places of worship. According to the release:

No place of worship will be able to reopen before a final decision by the government and the accompanying change to the legal position in the published regulations. Faith organisations will be able to reopen at a slower pace if they wish.

[Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Joshua Neoh,  Apostasy and Freedom of Religion in Malaysia, (in Paul Babie, Neville Rochow and Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms (Edward Elgar Press, 2020)).
• Tarlan Masmaliyeva, Headscarf Cases Before the CJEU: Achbita and Bougnaoui (April 16, 2020).
• Kellen Funk, The Swearer's Prayer, (May 12, 2020).
• Julie Ada Tchoukou, Religion as an Ideological Weapon and the Feminisation of Culture in Nigeria: A Critical Analysis of the Textuality of Violence Through the Legal Regulation of Child Marriages, (The International Journal of Human Rights, 2020).
• Howard Wasserman, Testing the Koufax Curse: How 18 Jewish Players (and Rod Carew) Performed on Yom Kippur, (Florida International University Legal Studies Research Paper No. 20-07 (2020).
• Heidi Gilchrist, 'Act Normal or Leave': When Law and Culture Collide, (Columbia Journal of European Law, Forthcoming).
• Carlo A. Pedrioli, Regulating Online Hate Speech: A U.S. Perspective, (6 Int'l J. Digital & Data L. 259 (2020)).
• Abdullah Salem Bugshan, Faisal Alnori & Walid Bakry, Shariah Compliance and Corporate Cash Holdings (November 30, 2019).

From SmartCILP:

• Francis J. Beckwith, Now, I'm Liberal, But To a Degree: An Essay on Debating Religious Liberty and Discrimination by John Corvino, Ryan T. Anderson, Sherif Girgis, 67 Cleveland State Law Review 141-172 (2019).
• Vanita Saleema Snow, Reframing Radical Religion, 11 Georgetown Journal of Law & Modern Critical Race Perspectives 1-41 (2019).
• Brian Miller, Reconciling Religious Freedom and LGBT Rights: The Perils and Promises of Masterpiece Cakeshop, 29 George Mason University Civil Rights Law Journal 245-274 (2019).
• Joe Dryden, Matthews v. Kountze Independent School District: An Outlier In a Sea of Establishment Clause Outliers, 29 George Mason University Civil Rights Law Journal 275-300 (2019).
• Shelly Aviv Yeini, The Rest Day of Professional Football Players in Israel, [Abstract], 18 Virginia Sports & Entertainment Law Journal 17-34 (2018).

Court Strikes Down North Carolina Limits On Worship Services

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor's COVID-19 order that limits indoor worship services to ten people. Saying that "There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.," the court continued:

The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.

News & Observer reports on the decision.

Louisiana Limits On Church Services Upheld

In Spell v. Edwards, (MD LA, May 15, 2020), a Louisiana federal district court upheld the validity of the Louisiana governor's COVID-19 restrictions on church services.The court said in part:

At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person.... Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering.... 

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

(See prior related posting).

Court Is Critical of Church's Litigation Tactics In Challenge To COVID-19 Order

In First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (ND MS, May 14, 2020), a Mississippi federal district court refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services.  Both the state and the city have issued  COVID-19 orders that are similar, but the church views the state as being more friendly to religious exercise.  The court, in an  opinion critical of the church's continued litigation, said in part:

This court has found the City to be quite accommodating of the free exercise of religion in this case, including by quickly amending its ordinance to expressly grant plaintiff the right to conduct the drive-in services which it previously requested. Nevertheless, plaintiff appears to regard the Governor, but not the City, as a friend of the exercise of religion, and, that being the case, this court can discern little point in the City choosing to increase its legal exposure by adopting its own executive orders relating to church services, when they are so similar to the Governor’s. The City’s choice of whether or not to adopt the Governor’s orders will be moot if it is determined that the Governor’s orders pre-empt the City’s, but this court raises this as one potential step to bridge the gap of mistrust which clearly exists between the parties in this case.....

Plaintiffs’ briefing on this issue heightens this court’s impression that this entire lawsuit is nothing more than a deeply misguided attempt on their part to gain permission to endanger their own lives and those of their fellow community members. While this court does not rule out the possibility that indoor church services could be held at acceptable risk by a responsible church if sufficient precautions were taken, it has grave concerns whether the plaintiff in this case is sufficiently aware of the gravity of these matters to enable it to do so....

This court observes that plaintiff has made a habit in this litigation of taking the time to carefully prepare briefs (its brief in support of its current motion is 26 pages long) and then demanding an immediate ruling from this court, with opposing counsel left to make hurried arguments in a telephonic hearing. This is a fundamentally unfair process, and this court will no longer tolerate it.

European Court Says Muslim Inmate's Religious Rights Were Infringed In Russian Prison

The European Court of Human Rights this week handed down an opinion in the case of a Muslim inmate in a Russian prison who claims that his religious rights were infringed in violation of the European Convention on Human Rights when he was reprimanded for praying in the middle of the night during Ramadan.  In Korostelev v. Russia, (ECHR, May 12, 2020), the court said in part:

Religious freedom is primarily a matter of individual thought and conscience..... However, ... freedom of religion also encompasses the freedom to manifest one’s belief.... The manifestation of religious belief may take the form of worship, teaching, practice and observance.... Since the manifestation by one person of his or her religious belief may have an impact on others, ... any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein...

From the Government’s submission and the findings of the domestic authorities, it appears that the only reason for disciplining the applicant was the formal incompatibility of his actions with the prison schedule and the authorities’ attempt to ensure full and unconditional compliance with that schedule by every prisoner.

... Although the Court recognises the importance of prison discipline, it cannot accept such a formalistic approach, which palpably disregarded the applicant’s individual situation and did not take into account the requirement of striking a fair balance between the competing private and public interests.

The court in a chamber judgment awarded plaintiff 2600 Euros in damages and another 2000 Euros for costs and expenses. Law & Religion UK reports further on the case.

Churches Sue Over North Carolina COVID-19 Order

Two churches and an organization representing a number of churches filed suit yesterday in a North Carolina federal district court seeking to enjoin enforcement of  North Carolina Governor Roy Cooper's COVID-19 Order banning indoor religious worship services comprised of more than ten people. The complaint (full text) in Berean Baptist Church v. Cooper, (ED NC, filed 5/14/2020), alleges that the governor's orders are unconstitutional:

because they treat religious gatherings less favorably than similar secular gatherings, virtually banning religious assembly, are not narrowly tailored, and do not permit less restrictive means to achieve the government’s interest without burdening Plaintiffs’ rights as guaranteed by the U.S. Constitution’s First Amendment.

Plaintiffs also filed a Memorandum in Support of their motion for a TRO (full text). WSOC TV reports on the lawsuit.

9th Circuit: Church Has Standing To Challenge California Abortion Coverage Mandate

In Skyline Wesleyan Church v. California Department of Managed Health Care, (9th Cir., May 13, 2020), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's ruling on standing and ripeness in a challenge to the mandate that insurance policies cover legal abortion services.  The appeals court held that the church plaintiff has standing to challenge the requirement on free exercise grounds and that the claim is ripe for review. Courthouse News Service reports on the decision.