Suit By Christian Ministry Says Quebec Wrongly Cancelled Its Use of Convention Center

In Canada, suit was filed last week in a Quebec trial court by the Christian organization Harvest Ministries International challenging the province's cancellation of the organization's contract reserving the Quebec City Convention Centre for its Faith, Fire and Freedom Rally.  According to the Motion to Institute Proceedings (full text) in Harvest Ministries International v. Proulx, (Quebec Dist. Ct., filed 8/2/2023), the reservation was cancelled because Harvest Ministries anti-abortion views contradict Quebec's fundamental principles, even though the Rally itself was not an anti-abortion event.  The suit alleges that the cancellation violates Harvest Ministries' freedom of religion, expression and assembly and its right equality protected by Quebec's Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms. It seeks damages of $212,000. The Justice Centre For Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

COVID Order Violated Priest's Free Exercise Rights

 In Urso v. Mohammad, (D CT, March 10, 2023), a Catholic priest sued a town's health director over COVID orders that cancelled religious gatherings and congregational prayers. The court concluded that the health Directive violated plaintiff's free exercise rights, but left for trial the question of whether plaintiff suffered an injury, saying in part:

[N]ot all secular businesses in the Town of Orange were closed, and the Directive itself is unquestionably stricter than the Governor’s Executive Orders, which imposed capacity limits on religious institutions in line with those imposed on other secular businesses, and never cancelled all religious services completely.... In Agudath Israel, the Second Circuit applied strict scrutiny when businesses such as retail stores, news media, financial services, and construction were not as restricted as houses of religious worship.... Thus, the Second Circuit has already made the determination there is no meaningful difference between a retail store and a house of worship in terms of COVID-19 risk.... Regardless of how well intentioned it might have been and the difficult circumstances under which it was issued, the Directive “expressly singles out religion for less favored treatment” by subjecting religious services to complete cancellation while not imposing such strict measures on other businesses regardless of their size or the length of time people were gathering there ... and is thus subject to strict scrutiny....

The Court determines therefore as a matter of law both that the Directive is subject to strict scrutiny, and that it fails that scrutiny, thus violating the First Amendment....

The court concluded that plaintiff's equal protection claim is tied to the free exercise claim.  The court found that claims for injunctive and declaratory relief were now moot. It rejected plaintiff's Establishment Clause claim saying that the health directive did not "establish religion or espouse a religious message." It rejected plaintiff's free speech and freedom of assembly claims, relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts.

Church Can Move Ahead Against County in Suit on Covid Restrictions

 In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,”  [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

Plaintiff's Ban From Space Center Upheld

In Duvall v. United States Space and Rocket Center, (ND AL, April 11, 2022) an Alabama federal district court dismissed claims that plaintiff's free exercise, free speech and freedom of assembly rights were violated when he was banned from the Space Center's property. The ban was imposed after plaintiff was trying at the Center "to bust open Seal No. 7 of the Holy Bible.”

Conditions Of Special Use Permit For Church Upheld

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (ED VA, Nov. 10, 2021), a Virginia federal district court dismissed a suit brought by a church that sought to use its property for religious gatherings even though it could not yet afford to comply with conditions of its special use permit. The church was presently using space elsewhere in a farm winery/ brewery for religious services. It attempted to circumvent the special use permit requirements by obtaining approval to grow fruit trees and make non-alcoholic apple cider on its own property. However zoning authorities said that structures not associated with that agricultural use were not permitted, and that use of present structures for events such as wedding receptions would be allowed only if the church obtained a liquor license-- which the church refused to do because of its opposition to alcohol. The court rejected the church's RLUIPA, Free Exercise, Freedom of Assembly and Equal Protection challenges.

Baltimore Wrongly Denied Permission For Rally To Protest USCCB Conference

In St. Michael's Media, Inc v. Mayor and City Council of Baltimore, (D MD, Oct. 12, 2021), a Maryland federal district court in an 86-page opinion held that the city of Baltimore violated the free speech and assembly rights of St. Michael's (also known as "Church Militant") when it instructed the company managing the city-owned Pavilion to cease contract discussions with Church Militant.  Church Militant was planning a protest prayer rally across from the Fall General Assembly of the U.S. Conference of Catholic Bishops. According to the court, Church Militant:

“often criticizes the current leadership” of the Catholic Church for what it perceives as “corruption in the Church,” including the Church’s protection of priests and others implicated in the sexual abuse of minors.... In addition, St. Michael’s “is a vocal critic of what it perceives as politicization of the Catholic Church by the USCCB.” ... In particular, it “disagrees with, and criticizes, a number of the USCCB’s positions on religious doctrine and morality, as well as the Catholic Church’s covering up of the sexual abuse committed by priests.”

The city contended:

Church Militant is attempting to hold an event on November 16, 2021 with confirmed speakers including Steve Bannon and others whose speaking engagements and statements have a track record of inviting protestors and counter protestors and supporting the January 6 attack on the Capitol in Washington, D.C. According to available media reports, their events and statements have a demonstrated history of inciting property destruction, physical assaults, and other violence....

The court held, however:

Even under the more lenient standard applied to nonpublic and limited fora, viewpoint discrimination is constitutionally impermissible.... I conclude that plaintiff is likely to succeed on the merits of its claim that the City was not viewpoint-neutral in barring the rally. Therefore, I need not consider whether the City’s actions would have been reasonable in the absence of viewpoint discrimination....

Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications....

The City cannot conjure up hypothetical hecklers and then grant them veto power.... Moreover, invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.

The court granted a preliminary injunction and the city has appealed to the Fourth Circuit.

UPDATE: In an Order dated Nov. 3 (full text), the U.S. 4th Circuit Court of Appeals, without opinion, affirmed the district court.

Challenges To Alabama COVID-19 Orders Are Unsuccessful

In Case v. Ivey, MD AL, June 1, 2021), six plaintiffs brought a range of constitutional challenges to Alabama Governor Kay Ivey's COVID-19 Orders. In a 68-page opinion, the court dismissed all of them-- some on standing or mootness grounds, others on substantive or qualified immunity grounds. Among the claims, one plaintiff contended that the Orders denied her the right to attend the church of her choice. Two pastors claimed that the Orders resulted in the denial of their right to preach and conduct in-person services. The court concluded that defendants had qualified immunity as to the damage claims against them for violating the First Amendment's Free Exercise, Freedom of Assembly and Establishment Clauses because plaintiffs did not plausibly allege that defendants’ conduct violated law that was clearly established at the time of their actions.

Court Upholds New Mexico's COVID-19 Limits On Church Services In Lengthy Opinion

In a 268-page opinion in Legacy Church, Inc. v. Kunkel, (D NM, July 13, 2020), Legacy Church lost its challenges under the Free Exercise Clause and the Freedom of Assembly Clause to New Mexico Department of Health Kathyleen Kunkel’s Public Health Emergency Orders imposing various restrictions on gatherings for religious services. Summarizing its holdings, the court concluded that the Public Health Orders "are neutral with respect to religion and generally applicable;" and they "are unrelated to the suppression of speech or religion, serve a compelling state, interest, and less restrictive alternatives are not available."