Church Lacks Standing To Challenge State's Insurance Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, May 6, 2020), a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires all health insurance plans to cover all FDA-approved contraceptive products. The court concluded that the church lacks standing to pursue the claim, saying in part:

Cedar Park has failed to establish that any injury is fairly traceable to SB 6219. When Cedar Park needed to renew its health insurance plan on September 1, 2019, there was no product in the marketplace that complied with Cedar Park’s preferred requirements. Cedar Park has failed to establish that this absence of a product was because of SB 6219. In fact, Cedar Park’s previous plan did not conform to its beliefs despite SB 6219 not having legal effect when Cedar Park purchased that plan. Now, Providence offers what appears to be an acceptable product despite the continued applicability of SB 6219. Thus, Cedar Park has failed to establish an injury or an injury that is fairly traceable to SB 6219.

Yesterday's National Day of Prayer Proclamation

Missed in the flood of developments, yesterday was National Day of Prayer. Here is the full text of President Trump's Proclamation which focused in large part on the COVID-19 crisis, saying in part:

Today, as much as ever, our prayerful tradition continues as our Nation combats the coronavirus.  During the past weeks and months, our heads have bowed at places outside of our typical houses of worship, whispering in silent solitude for God to renew our spirit and carry us through unforeseen and seemingly unbearable hardships.  Even though we have been unable to gather together in fellowship with our church families, we are still connected through prayer and the calming reassurance that God will lead us through life’s many valleys.  In the midst of these trying and unprecedented times, we are reminded that just as those before us turned to God in their darkest hours, so must we seek His wisdom, strength, and healing hand.  We pray that He comforts those who have lost loved ones, heals those who are sick, strengthens those on the front lines, and reassures all Americans that through trust in Him, we can overcome all obstacles....

I encourage all Americans to observe this day, reflecting on the blessings our Nation has received and the importance of prayer, with appropriate programs, ceremonies, and activities in their houses of worship, communities, and places of work, schools, and homes consistent with the White House’s “Guidelines for Opening up America Again.”

Church Sues Maine Governor Over COVID-19 Restrictions

A lawsuit was filed on Tuesday in a Maine federal district court challenging Maine Governor Janet Mills' COVID-19 Order that restricts in-person religious services.  The complaint (full text) in Calvary Chapel of Bangor v. Mills, (D ME, filed 5/5/2020), alleges in part:

Calvary Chapel seeks a TRO restraining enforcement against Calvary Chapel of the various COVID-19 orders issued by Governor Mills and other State officials purporting to prohibit Calvary Chapel, on pain of criminal sanctions, from gathering in person at Calvary Chapel for worship services, regardless of the number of individuals present or whether Calvary Chapel meets or exceeds the social distancing and hygiene guidelines pursuant to which the State disparately and discriminatorily allows so-called “essential” commercial and non-religious entities (e.g., liquor stores, marijuana dispensaries, warehouse clubs, and ‘big box’ stores) to accommodate large crowds and masses of persons without scrutiny or numerical limit.

Bangor Daily News reports on the lawsuit.

Kentucky Governor Sued By Church and State AG Over COVID-19 Restrictions On Services

A church filed suit yesterday in a Kentucky federal district court challenging Kentucky Governor Andrew Beshear's COVID-19 Orders which bans in-person religious services but allows businesses categorized as "life-sustaining" to remain open with proper social distancing. The complaint (full text) in Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear, (ED KY, filed 5/6/2020) alleges in part:

The exception in Governor Beshear’s order for “life-sustaining” businesses allows shopping malls, grocery stores, hardware stores, law firms, laundromats, liquor stores, and gun shops to continue to operate without fear of state police taking adverse action against participants in such endeavors, so long as they follow social-distancing and other health-related precautions. Businesses allowed to operate (like retail stores, for instance) have no numerical limitations or other restrictions that would cap the number of people who can gather together indoors. Defendants have thus deemed it safe to walk down an aisle in a grocery store, but not an aisle between pews, and to interact with a delivery woman, but not with a minister.

Kentucky Attorney General Daniel Cameron announced that he has filed a complaint (full text of complaint) seeking to intervene as a plaintiff opposing the Governor's Orders.  In his announcement, the Attorney General said in part:

The Governor continued his arbitrary and unlawful targeting of faith-based groups when he announced last week that some businesses, including dog groomers, horse races, manufacturers, and car dealerships, can reopen as early as May 11, nine days before houses of worship can reopen.  The law requires religious services to be treated no differently than secular activity, as long as those participating follow appropriate Centers for Disease Control (“CDC”) recommendations.

Thus a Republican state attorney general is pitted against a Democratic governor in federal court. WKYT News reports on the lawsuit.

Churches Sue Michigan Governor Over COVID-19 Orders Despite Their Exemption From Penalties

A group of churches and clergy yesterday filed suit in a Michigan federal district court challenging on a wide variety of state and federal constitutional grounds the stay-at-home orders of Michigan's Governor Gretchen Whitmer. These orders do not exempt churches, but do provide that they are not subject to any penalty for violating the restrictions.  The complaint (full text) in Word of Faith Christian Center Church v. Whitmer, (WD MI, filed 5/6/2020) alleges in part:

7.  EO   2020-70   continues   to   prohibit   gatherings   of   two   or   more individuals, including at churches, thereby denying them the ability to hold worship services and otherwise carry out their ministry functions until May 28, 2020.

8.  While EO 2020-70 states that “neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place,” nothing in this provision applies to individuals attending a place or worship as clergy or congregants and does not apply to Plaintiffs.

9. A  promise  to  not  subject  a  geographic  location or  its  “owner”  to  the  criminal penalty under  EO  2020-70 merely  adorns  the  constitution  with  a  fig  leaf  and does not protect individuals or change the clear language of the order prohibiting any   religious services   or   other   ministry functions   at   a   church   or   religious  organization.

M Live reports on the lawsuit.

Church's Challenge To California Stay-At-Home Orders Is Rejected

In Cross Culture Christian Center v. Newsom, (ED CA, May 5, 2020), a California federal district court refused to enter a temporary restraining order against enforcement of state and county COVID-19 stay-at-home orders. The orders were challenged by a church wishing to hold in-person services. Rejecting plaintiff's free exercise claim, the court held that the orders are neutral laws of general applicability subject only to rational basis review.

Supreme Court Will Broadcast Contraceptive Mandate Case Arguments Today In Real Time

Beginning at 10:00 am (EDT) this morning, the U.S. Supreme Court will hear consolidated oral arguments in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania  (SCOTUSblog case page) and Trump v. Pennsylvania (SCOTUSblog case page). In the case, the 3rd Circuit upheld a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding exemptions under the Affordable Care Act for employers with religious or moral objections to contraceptive coverage. Little Sisters of the Poor were intervenors in the 3rd Circuit case. (See prior posting.)  Under the Supreme Court's special procedures for arguments during the COVID-19 crisis, arguments will be conducted via teleconference which will be broadcast live by C-Span at this link.

Court Refuses To Dismiss Catholic School Teacher's Suit On Church Autonomy Grounds

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super. Ct., May 1, 2020), an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a teacher who claims that the Archdiocese interfered with his contractual relationship with Cathedral High School, an independent school that had a relationship with the Archdiocese. The teacher was ordered to be fired by a directive from the Archdiocese issued after the teacher entered a same-sex marriage. The school feared that if it did not comply, the Archdiocese would no longer recognize it as a Catholic institution. The Archdiocese argued that the lawsuit should be dismissed under the "church autonomy" doctrine. The court said in part:

In civil dispute involving church as party, the court has jurisdiction to resolve the case if it can be done without resolving an ecclesiastical controversy. The court can avoid the religious controversy by deferring to the highest authority within the ecclesiastical body....

... [T]his Court cannot determine that the directive by the Archdiocese to terminate Payne-Elliott was made by the highest authority in the ecclesiastical body of Cathedral or of the Roman Catholic Church.“

The court also questioned whether the case involved an ecclesiastical controversy at all:

... [A] letter from the President and Chairman of the Board of Cathedral elaborates as to ”What is at stake?” Therein, Cathedral states: ”Furthermore, Cathedral would lose its 501(c)(3) status thus rendering Cathedral unable to operate as nonprofit school." This rational for firing Payne-Elliott is important,... If Payne-Elliott was terminated by Cathedral for an economic benefit to Cathedral at the direction of the Archdiocese, then that is different matter than Catholic doctrine.

The court also refused to accept several other grounds for dismissal put forward by the Archdiocese.  Indiana Lawyer reports on the decision.

Trump On COVID-19 Restrictions On Worship Services

On Sunday, President Trump answered questions for nearly two hours at a Fox News Virtual Town Hall, televised from the Lincoln Memorial in Washington, D.C. (Transcript of full Town Hall.) Here is what the President had to say about state restrictions on in-person worship services:

VIEWER:  Hi, Mr. President.  My husband and I both work at our local church, and I think a lot of us churchgoers are just wondering when we might be able to get back to an in-person church service.  Do you have any idea when this might be?

THE PRESIDENT:  I hope it’s going to be very soon, because I’m seeing things that I don’t like seeing.  I see some churches — they are literally staying in their car with the window closed.  I guess it comes out through the radio, the service.  And they were getting arrested, and they’re sitting in a car, and the cars are even far away.  And they say, “Close your windows.”  So it has to come in electronically, and I’m saying, “Why can’t they do that?”

Or they’ll go in a field, some field, and they’ll be — they’ll have a good minister, pastor, or could be a rabbi, could be a person of faith, and what happens is, in some places — not in all places — I would say in most places they really sympathize.  But I do.

And I’ve been listening to services over the last four or five weeks.  Some very, very good people.  And everybody knows who I’ve been listening to.  And we go different person.  Last week it was Cardinal Dolan at St Patrick’s Cathedral, a place I’m very familiar with.  But we’ve had pastors and ministers.

I will say this: It’s wonderful to watch people over a laptop, but it’s not like being at a church.  And we have to get our people back to churches, and we’re going to start doing it soon.

Q    The Attorney General sent a memo directing U.S. attorneys to be on the lookout for health restrictions that could interfere with constitutional rights.  There are a lot of people who cheered that because, you know, they do want to go back to church, and as you’re talking about.  But there are others who fear he might be encouraging people to do things that might be unsafe at the time when some states are going up.

THE PRESIDENT:  Yeah.  No, he’s not — well, there’s not too many states that I know of that are going up.  Almost everybody is headed in the right direction....

South African Court Upholds COVID-19 Ban Over Objections of Mosque and Its Imams

Challenges to COVID-19 Orders by houses of worship are not limited to the United States.  In Mohamed v. President of the Republic of South Africa, (SA High Ct., April 30, 2020), a South African trial court judge rejected a challenge to the country's lock down order brought by a mosque and two of its imams and worshipers. The Order, issued under the Disaster Management Act 2002, effectively required all houses of worship to be closed down. The court described the claims being asserted:

According to the applicants, they believe it is obligatory to perform the five daily prayers in congregation and at mosque. Although they admit that their views are not held by the majority of Muslims throughout the country, they claim that the Lockdown Regulations violate their constitutional rights to freedom of movement, freedom of religion, freedom of association (including religious association) and the right to dignity....

... [A]pplicants seek, not just an order exempting them from the restrictions placed on congregational worship, but all persons. 

Section 36 of South Africa' Constitution provides:

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors....

The court concluded:

This pandemic poses a serious threat to every person throughout South Africa and their right to life, dignity, freedom of movement, right to access healthcare and their right to a clean, safe and healthy environment. In a country where we are dominated by so much poverty, where people don’t have access to basic amenities such as clean running water, housing, food and healthcare, the potential risk to those households poses a further threat which places an additional burden on the Government to combat – the risk then, in light of those circumstances rises exponentially....

To the extent that the Government has put together its Task Team, has consulted exhaustively with them to ensure the safety of its citizens in order to “flatten the curve” and prevent an already fragile health system from being overwhelmed, I cannot find that the restrictions imposed are either unreasonable or unjustifiable and thus the application must fail.

GroundUp reports on the decision.

DOJ Files Statement of Interest Supporting Church's Challenge To Virginia's COVID-19 Restrictions

The Department of Justice announced yesterday that it has filed a Statement of Interest supporting plaintiff in Lighthouse Fellowship Church v. Northam.  The suit seeks to enjoin the state of Virginia from enforcing its COVID-19 Order limit on church services. The order limits religious gatherings to ten people. (See prior posting.)  By filing its Statement of Interest before the state of Virginia was required to file its answer to the complaint, DOJ was able to avoid taking a position on several important questions. DOJ's Statement of Interest (full text) contends in part:

This case ... involves important questions of how to balance the deference owed to public officials in addressing a pandemic threatening the health and safety of the public with fundamental constitutional rights. For purposes of this filing, the United States does not take a position on the ultimate question of whether the Commonwealth may have a legally sufficient justification for treating Plaintiff differently from non-retail businesses or other permitted assemblies that may be comparable. The Commonwealth has not yet responded to Plaintiff’s allegations that it permits non-retail businesses, such as law or accounting offices, to gather in numbers greater than ten so long as they use social distancing. Likewise, the Commonwealth has not yet responded to Plaintiff’s allegations that various comparable secular gatherings are permitted. Based on the materials before the Court, Plaintiff has demonstrated a likelihood of success on the merits of its claim under the Free Exercise Clause of the U.S. Constitution that the Commonwealth’s executive orders have prohibited religious gatherings at places of worship, even with social distancing and personal hygiene protocols, while allowing comparable secular gatherings to proceed with social distancing. It thus becomes the Commonwealth’s burden to demonstrate that it has compelling reasons to treat Plaintiff differently than similar non-religious businesses, and that it has pursued its objectives through the least restrictive means. Because the Commonwealth has not yet filed any response, it has not satisfied its burden.

New York Post reports on DOJ's filing.  On Sunday, Virginia's Governor Northram filed a Notice of Intent To File A Response, asking the court to wait for that before deciding the case. On Friday, the court had issued a 33-page opinion denying a Temporary Restraining Order. Lighthouse Fellowship Church v. Northam, (ED VA, May 1, 2020).
[UPDATED]

Court Rejects Challenge To Illinois 10-Person Limit On Religious Services

In Cassell v. Snyders, (ND IL, May 3, 2020), an Illinois federal district court upheld against constitutional attack Illinois Governor J.R. Pritzker's COVID-19 Order which, as amended after the filing of this lawsuit, allows religious worship services of up to ten people if they comply with social distancing precautions. In denying plaintiffs injunctive relief, the court said in part:

The Court is mindful that the religious activities permitted by the April 30 Order are imperfect substitutes for an in-person service where all eighty members of Beloved Church can stand together, side-by-side, to sing, pray, and engage in communal fellowship. Still, given the continuing threat posed by COVID-19, the Order preserves relatively robust avenues for praise, prayer and fellowship and passes constitutional muster. Until testing data signals that it is safe to engage more fully in exercising our spiritual beliefs (whatever they might be), Plaintiffs, as Christians, can take comfort in the promise of Matthew 18:20—“For where two or three come together in my name, there am I with them.” ...

Ultimately, then, the Court concludes that the April Order qualifies as a neutral, generally applicable law. It therefore withstands First Amendment scrutiny so long as “it is supported by a rational basis.” ... Given the importance of slowing the spread of COVID-19 in Illinois, the Order satisfies that level of scrutiny, and Plaintiffs do not seriously argue otherwise. As a result, the Court finds that Plaintiffs’ Free Exercise claim is unlikely to succeed on the merits.

The court also rejected state RFRA and other state law challenges. WTTW News reports on the decision.

Priest Sues Challenging New Jersey COVID-19 Order

Last week, a New Jersey Catholic priest filed suit challenging New Jersey Governor Phil Murphy's COVID-19 Order which has led to the closure of all Catholic churches in the state. The complaint (full text) in Robinson v. Murphy, (D NJ, filed 4/30/2020), alleging violations of the 1st and 14th Amendments, seeks a temporary restraining order preventing the state from imposing different restrictions on religious gatherings than it does on gatherings at "essential" commercial businesses.  NJ101.5 News reports on the lawsuit.

UPDATE: On July 23, plaintiffs filed a third amended complaint (full text) in the case. Thomas More Society issued a press release announcing the filing.

Pastors Challenge Maryland's COVID-19 Limits On Worship Services

As reported by the Baltimore Sun:

Maryland politicians, pastors and business owners banded together Saturday afternoon to file a sweeping federal lawsuit aimed at ending restrictions enacted by Maryland Gov. Larry Hogan in response to the coronavirus.

The lawsuit argues that the governor’s orders banning large gatherings and closing most businesses violate constitutional and federal laws protecting commerce, freedom of assembly, the right to protest and the right to practice their religion.

The 56-page complaint (full text) in Antietam Battlefield KOA v. Hogan, (D MD, filed 5/2/2020) includes nine pastors and a deacon among the 19 plaintiffs.It alleges in part that the Governor's ten-person limit on gatherings for religious worship violates plaintiffs free exercise rights and violates the Establishment Clause by dictating the manner in which Christians and churches must worship.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, Why School Prayer Matters, (San Diego Legal Studies Paper No. 20-447 (2020)).
• Robin S. Maril, The Religious Freedom Restoration Act, Trinity Lutheran, and Trumpism: Codifying Fiction with Administrative Gaslighting, (Northwestern Journal of Law and Social Policy, Vol. 16, No. 1, 2020).
• Stephanie H. Barclay, The Historical Origins of Judicial Religious Exemptions, (Notre Dame Law Review (forthcoming 2020)).
• Greer Donley, Beatrice Chen & Sonya Borrero, The Legal and Medical Necessity of Abortion Care Amid the COVID-19 Pandemic, (Journal of Law & the Biosciences, Forthcoming).
• Tifani Silveria, Whole Woman's Health: Not the 'Whole' Story, (Regent University Law Review, Vol. 32, No. 1, 2019).
• Nancy J. Knauer, The LGBT Equality Gap and Federalism, (American University Law Review, Vol. 70, No. 1, 2020).
• David S. Miller, et al, The FFCRA and CARES Act: Key Provisions Affecting Nonprofit Organizations (April 23, 2020).
• Philip Hackney, Political Justice and Tax Policy: The Social Welfare Organization Case, (Texas A&M Law Review, Vol. 8, 2021, Forthcoming).

From SSRN (International and Non-U.S. Law):

• Ioana Cismas & Ezequiel Heffes, Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance, (Yearbook of International Humanitarian Law Vol. 22: 70 Years Geneva Conventions: Past, Present and Future (2020 Forthcoming)).
• Giancarlo Anello, Homo Religiosus in a Globalized World: How Religious Individuals are Actors of Global Law, (April 4, 2020).
• Margaret Muga & Joshua Malidzo Nyawa, Judicial Protection of the Minority Religious Beliefs: A Commentary on the Rastafarian and Mohammed Fugicha (Hijab) Judgments, (March 28, 2020).
• Shaikh Ahmad, Review on Triple Talaq Within the Islamic Legislations, (March 28, 2020).
• Shaikh Ahmad, Muslim Women's Rights Regarding Marriage and Divorce In the Context of the Islam Religion, (March 31, 2020).
• Shaikh Ahmad, Analysis of the Triple-Talaq Within the Framework of Judiciary in India With Reforms of Sharia Law, (April 2, 2020).

From SmartCILP:

• Shams Al Din Al Hajjaji, A Tale of Two Theories: Government By Judiciary Theory versus Guardianship of the Jurist Theory, 33 Emory International Law Review 503-533 (2019).

President Proclaims May As Jewish American Heritage Month

Last week, President Trump issued a Proclamation (full text) declaring May 2020 as Jewish American Heritage Month. The Proclamation reads in part:

This month, we reaffirm our commitment to never compromise our steadfast support for the Jewish community, our rejection of anti-Semitic bigotry, and our disdain for malicious attacks of hatred.  Jewish Americans strengthen, sustain, and inspire our country through dedication to family, respect for cherished traditions, and commitment to the values of justice and equality that unite Americans of every faith and background.

Administrative Offices of New Orleans Archdiocese File For Bankruptcy

On Friday, the Catholic Archdiocese of New Orleans announced that the Administrative Offices of the Archdiocese have filed for Chapter 11 bankruptcy reorganization, saying in part:

The move was necessitated by the growing financial strain caused by litigation stemming from decades-old incidents of clergy abuse as well as ongoing budget challenges. The unforeseen circumstances surrounding COVID-19 have added more financial hardships to an already difficult situation.  

This filing only affects the Archdiocesan administrative offices.... The Archdiocese’s action will not affect individual church parishes, their schools, schools run by the various religious orders, or ministries of the church. These offices will continue daily ministry as usual....

The intention of the filing is to allow time to develop a reorganization plan detailing how available assets and insurance coverage will be used to settle outstanding claims and to negotiate reasonable settlements while enabling the administrative offices to continue and emerge better prepared for the future. This reorganization will also allow the Archdiocese to address remaining clergy abuse cases in a way that will allow funds to go directly to victims instead of funding prolonged, costly litigation.

6th Circuit Allows Drive-In Church Services While Appeal Is Pending

In Maryville Baptist Church, Inc. v. Beshear, (6th Cir., May 2, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of the governor's COVID-19 Order insofar as it prohibits drive-in services at the Maryville Baptist Church. However the Church must comply with the social distancing and hygiene guidelines for so-called "life-sustaining" organizations. A Kentucky federal district court had refused to grant a TRO in order to permit in-person services (see prior posting). The Court of Appeals would not extend its injunction to in-person services either.  In allowing drive-in services, the 6th Circuit said in part:

The exception for “life-sustaining” businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions.... But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.

The court added:

 As individuals, we have some sympathy for Governor DeWine’s approach—to allow places of worship in Ohio to hold services but then to admonish them all (we assume) that it’s “not Christian” to hold in-person services during a pandemic.

Liberty Counsel issued a press release announcing the decision.

Israel's High Court Invalidates Ban On Bringing Chametz Into Hospitals During Passover

Jerusalem Post reports that yesterday Israel's High Court of Justice, in a 2-1 decision, invalidated the Chief Rabbinate's ban on patients and visitors bringing food that is not kosher for Passover (chametz) into patients' hospital rooms.  It also invalidated the order to search those entering hospitals during Passover for chametz. According to the paper's report:

In a majority ruling, judges Uzi Vogelman and Ofer Grosskopf wrote that the ban harms the fundamental rights for the autonomy of the individual and freedom of religion.

They wrote that it also harms the dignity of patients and their right to self-determination and the exercise of their own choices and preferences.

Nativity Scene On Indiana County Building Property Held Unconstitutional

In Woodring v. Jackson County, Indiana, (SD IN, April 30, 2020), an Indiana federal district court held that the Establishment Clause is violated by a nativity scene displayed on the lawn of an historical courthouse that now houses county offices.  The court first concluded that plaintiff has standing to sue:

Her injury is the direct contact she must endure with a display that she alleges violates the Establishment Clause in the course of exercising her rights as a citizen of Jackson County.

Moving to the merits of the claim, the court said in part:

Here ... the Nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers....

Nevertheless, two facts persuade the Court that this Nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display.... Santa and the carolers are placed to the far side of the display, away from the more centralized Nativity display, which straddles the sidewalk subdividing the lawn.... The crèche is the vast majority of the display ... making it appear much larger than the solitary Santa figure.... The carolers have been placed in the back of the display, lessening the attention they would draw from an observer....

The second fact that convinces the Court that the Nativity scene would give the impression of a religious endorsement is the scene’s history. For many years, it was only a Nativity scene, with no secular elements at all.... But in 2018, in response to a letter from the Freedom from Religion Foundation questioning the display’s constitutionality, the President of the County Commissioners ... physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche.... The addition of less prominent secular symbols at the fringes of the display is not enough to counteract the impression a reasonable observer would have gotten from seeing the Nativity display placed on the lawn of the Courthouse for nearly 20 years. The Court has no doubt that a sufficient balancing between secular and nonsecular elements could bring this display into harmony with the First Amendment despite its history, but that balancing has not occurred here. Thus, the display fails the endorsement test.