Church's Suit On COVID Limits Dismissed As Moot

In Calvary Chapel of Bangor v. Mills, (D ME, June 4, 2021), a Maine federal district court dismissed on mootness grounds a church's challenge to Maine Governor Janet Mills now-superseded COVID-19 limits on the number of people permitted to attend worship services. The court said in part:

Governor Mills has not employed a strategy of “moving the goalposts.” The fact that she retains some authority to reimpose restrictions does not mean that she is likely to do so, particularly given her counsel’s statements and her actions thus far. I conclude that the Defendant has demonstrated that it is absolutely clear that Governor Mills cannot reasonably be expected to reinstate the GATHERING ORDERS that are identified in the Complaint.

Previously the court had denied a temporary restraining order, and an appeal of that decision is currently pending in the U.S. Supreme court. Nevertheless, last week's decision was immediately appealed to the U.S. 1st Circuit Court of Appeals. Liberty Counsel issued a press release on the case.

Another Church Seeks Emergency Injunction Against COVID Limits From Supreme Court

Last Friday, a Maine church filed a motion with the U.S. Supreme Court seeking an injunction while its petition for certiorari is pending to prevent Maine from enforcing its COVID-19 capacity restrictions on worship services. The petition (full text) in Calvary Chapel of Bangor v. Mills, (Sup. Ct. filed 5/21/2021), says in part:

For 381 days, Respondent Governor Janet Mills ... has been imposing unconstitutional restrictions on Calvary Chapel’s religious worship services while exempting myriad other activities from similar restrictions. Every religious worship gathering of Calvary Chapel from March 2020, to the present has been and is “illegal” under the Governor’s Orders. Maine imposes the most severe restrictions in the country on churches and places of worship.

Liberty Counsel issued a press release announcing the filing of the motion. 

Cert. Petition Filed In Maine Church's Challenge To COVID Limitations

A petition for certiorari (full text) was filed on Monday with the U.S. Supreme Court in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals dismissed a church's interlocutory appeal of the denial of a temporary restraining order against enforcement of the Maine governor's COVID Orders. Those orders, which have been amended since the 1st Circuit's decision, continue to limit the number of persons that can gather at a faith-based event. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition for review.

Another Church Seeks Supreme Court's Intervention On COVID-19 Restrictions

Continuing the flow of cases asking the U.S. Supreme Court to intervene to allow churches to to hold worship services at greater capacity than allowed by state COVID-19 orders, an emergency application for an injunction or summary reversal (full text) was filed with the Supreme Court on Feb. 11 in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals held that the district court's denial of a temporary restraining order was not appealable before the district court rules on the church's preliminary injunction request. (See prior posting.) Liberty Counsel issued a press release announcing the filing.

Cert. Petition Filed In Maine's Tuition Reimbursement Controversy

A petition for certiorari (full text) was filed with the U.S. Supreme Court last Thursday in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Religious high schools do not qualify. (See prior posting.) Institute of Justice issued a press release  announcing the filing of the lawsuit. [Thanks to Michael Bindas and Chris Freund for the lead.]

1st Circuit: Church's Appeal of TRO Denial Is Dismissed

 In Calvary Chapel of Bangor v. Mills, (1st Cir., Dec. 22, 2020), the U.S. 1st Circuit Court of Appeals dismissed a church's interlocutory appeal of the district court's denial of a temporary restraining order against enforcement of the Maine governor's COVID Orders that prohibited the gathering of more than ten people for faith-based events. The court concluded that denial of a temporary restraining order-- before the district court rules on a preliminary injunction request-- here is not appealable, even though both parties contended that this case fell within an exception to that rule.  The court said in part:

The Chapel contends that the district court's decision to deny it a temporary restraining order functionally precluded any possibility of a preliminary injunction. This contention elevates hope over reason....

... [T]he absence of immediate appealability — like the denial of the temporary restraining order itself — will not cause serious harm. Given the gravity of the situation and the fact that events remained in flux, we discern no sufficient basis for finding that the Chapel can satisfy the second of the three requirements for immediate appealability of a temporary restraining order. In this regard, we deem it important that the Chapel retained other means to organize worship services for its congregants, including the sponsorship of online worship services, the holding of drive-in services, and the hosting of gatherings of ten or fewer people.

1st Circuit Upholds Maine's Exclusion of Sectarian Schools From Tuition Reimbursement

In Carson v. Makin, (1st Cir., Oct. 29, 2020), the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Plaintiffs challenge this, particularly in light of the U.S. Supreme Court's Trinity Lutheran and Espinoza decisions. The court distinguished Supreme Court precedent as follows:

Accordingly, we proceed on the understanding that this restriction, unlike the one at issue in Espinoza, does not bar schools from receiving funding simply based on their religious identity -- a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.... Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program....

The difficulty Maine confronts is that many of its localities cannot feasibly provide the benefits of that free public education directly to their residents. Thus, Maine has had to adapt to that reality. In doing so, it has chosen to provide -- while still ensuring that any parent in Maine may send their child to a religious school at their own expense -- tuition assistance for those children who live in localities that operate no public secondary school of their own to attend a private school that will provide a substitute for what they cannot get from the government. 

In conditioning the availability of that assistance on the requirement that recipients use it for educational instruction that is as nonsectarian in content as the free public education that is not directly available to them, Maine transgresses neither the Free Exercise Clause nor the Establishment Clause, nor any of the other provisions of the federal Constitution that the plaintiffs invoke.

Courthouse News Service reports on the decision.

1st Circuit Hears Oral Arguments In COVID-19 Worship Service Limitation Challenge

 The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments in Calvary Chapel of Bangor v. Mills. (Audio of full oral arguments.) In May, a Maine federal district court a Maine federal district court rejected a church's First Amendment challenge to Maine Governor Janet Mills' COVID-19 order which at that time prohibited religious gatherings of more than ten people. (See prior posting.)  WBAI News reports on the oral arguments.

Maine Ban On Religious Gatherings Over 10 Persons Is Upheld

In Calvary Chapel of Bangor v. Mills, (D ME, May 9, 2020), a Maine federal district court refused to issue a temporary restraining order against Maine Governor Janet Mills' COVID-19 order which prohibits religious gatherings of more than ten people. The court rejected plaintiff's free exercise, Establishment Clause and free speech challenges to the Order.

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.

Maine Voters Refuse To Repeal Strengthened Vaccination Requirements

As reported by BJC, on Super Tuesday earlier this month, voters in Maine, by a 3-1 margin, rejected an attempt to repeal Maine's new stronger immunization law. The law removes the prior exemption for religious and philosophical objections to vaccination. The law goes into effect in September 2021.

District Court, Citing 1st Circuit Precedent, Upholds Maine's School Funding Plan

In Carson v. Makin, (D ME, June 26, 2019), the Maine federal district court rejected a 1st Amendment challenge to Maine's program for paying tuition to private high schools for students in districts which do not operate their own high schools. The program excludes sectarian schools from participating. The district court approved Maine's plan on the basis of prior 1st Circuit decisions, despite challengers' argument that the Supreme Court's decision in Trinity Lutheran Church v. Comer should change the result. The district court said in part:

My decision not to decide the ultimate question the parties and amici pose—whether Trinity Lutheran has changed the outcome in Eulitt—is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. In the First Circuit, the parties can argue their positions about how Trinity Lutheran affects Eulitt. I congratulate them on their written and oral arguments in this court. I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher). My prompt decision allows them to proceed to the next level expeditiously.

(See prior related posting.) Maine Public Radio reports on the decision.

Justice Department Files Statement of Interest In Challenge To Maine's Exclusion of Parochial Schools From State Program

The Justice Department announced on Monday that it has filed a Statement of Interest in a suit brought in a Maine federal district court by parents and students claiming unconstitutional discrimination against religious schools.  In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  The suit challenges the Maine law that bars paying tuition for students to attend sectarian schools under this program. (See prior posting.) The Justice Department said in part:

Today’s filing addresses issues set forth in the Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on Oct. 6, 2017, at the direction of President Trump’s  May 4, 2017, Executive Order Promoting Free Speech and Religious Liberty.

AP reports on DOJ's action. [Thanks to Tom Rutledge for the lead.]

Suit Challenges Exclusion of Sectarian Schools From Maine's High School Tuition Program

In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  However state law bars paying tuition for students to attend sectarian schools.  On Monday a suit was filed challenging that exclusion.  The complaint (full text) in Carson v. Hasson, (D ME, filed 8/21/2018), alleges that this exclusion violates the 1st and 14th Amendments.  In a press release announcing the filing of the lawsuit, First Liberty described the claims:

By singling out religious schools, and religious schools only, for discrimination, Maine violates the religious freedom and equal protection guarantees of the U.S. Constitution. As the U.S. Supreme Court’s Chief Justice John Roberts wrote for a 7-2 majority in last year’s Trinity Lutheran Church v. Comer decision, excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.” Armed with this recent decision, IJ and FLI’s clients intend to vindicate the principle that government programs cannot discriminate against religion.

Cert. Filed In Challenge To Abortion Clinic Anti-Noise Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in March v. Mills, (cert. filed 11/6/2017).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  In March v. Mills, (1st Cir., Aug. 8, 2017), the appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." The 1st Circuit held that the Noise Provision is a content-neutral time, place and manner restriction. Thomas More Law Center issued a press release announcing the filing of the petition for review.

Maine OK's Pagan Priest Wearing Goat Horns In License Photo

The Washington Post reported today that a Pagan Priest, Phelan Moonsong, won the right earlier this month to wear a pair of goat horns in his Maine drivers license photo. Apparently Maine's motor vehicle bureau approved his request after he told them he had been in contact with the ACLU.  The state says that Moonsong did not mention that the goat horns were religious when he initially visited the Bureau of Motor Vehicles.

Suit Challenges Maine's Restriction On Loud Preaching Outside of Abortion Clinic

In Portland, Maine this week, a Christian pastor filed suit in federal district court challenging the constitutionality of a Maine statute designed to protect abortion facilities.  The law essentially prohibits demonstrating outside an abortion clinic with noise loud enough to be heard inside.  The complaint (full text) in March v. Mills, (D ME, filed 12/21/2015), contends that the statute violates plaintiff's 1st and 14th Amendment rights by targeting his religious, Christian, Pro-Life messages. He alleges in part:

Plaintiff considers it his vocation to encourage women to avoid the sin of abortion and to help them repent from their previous sins.... Plaintiff preaches outside of the abortion facility in order to better reach these women and to give women a last-chance alternative to their life-ending decision.

The suit claims that the restriction on his speech is a content-based prior restraint.  Thomas More Law Center issued a press release announcing the filing of the suit.

Maine's AG Sues To Enjoin Anti-Abortion Protester

Maine's Attorney General has recently filed a civil suit against an anti-abortion protester, seeking to enjoin him from coming within 50 feet of Portland's Planned Parenthood clinic and seeking to impose a $5000 civil penalty on him.  The complaint (full text) in State of Maine v. Ingalls, (Super Ct., filed 10/30/2015), alleges that Brian Ingalls, a regular protester, violated provisions of Maine law that prohibit interfering with constitutional rights as well as a provision barring intentional interference with the delivery of health services by making noise that can be heard within the building of a health care provider.  Ingalls was arrested after he ignored police warnings and continued to yell toward Planned Parenthood's second floor examination and counseling rooms about murdering babies, aborted babies' blood, and Jesus. The Portland Press-Herald says that this is the first suit of its kind to be filed in the state.

Suit By Evangelical Family Challenges Abortion Clinic Buffer Zone

The Thomas More Law Center yesterday announced that it has filed a federal lawsuit challenging a Portland, Maine ordinance that creates a 39-foot buffer zone around reproductive health clinics to prevent protests and counseling on sidewalks near the city's single clinic that provides abortions. The complaint (full text) in Fitzgerald v. City of Portland, (D ME, filed 2/12/2014), alleges that plaintiffs, a family who identify themselves as Evangelicals, have been peacefully praying and counseling women outside the clinic for 16 months, passing out literature and Bible tracts. The ordinance prevents their activities. The suit claims that this is a broad, vague content-based prior restraint on their speech. A suit raising similar legal issues was argued before the U.S. Supreme Court last month. (See prior posting.)