Delaware Supreme Court Dismisses Suits Challenging Prior Covid Restrictions on Houses of Worship

 In In re Covid-Related Restrictions on Religious Services, (DE Sup. Ct., Aug. 1, 2024), the Delaware Supreme Court upheld the dismissal by two lower courts of challenges to restrictions on houses of worship imposed by orders of Delaware's governor during the early stages of the Covid pandemic. Plaintiffs filed suit in the Chancery Court over 18 months after the restrictions were lifted seeking an injunction, and when that was rejected, filed suit in Superior Court seeking damages and a declaratory judgment. The Delaware Supreme Court said in part:

Plaintiffs could not demonstrate reasonable apprehension of future conduct.  As the Court of Chancery noted below, “[a]lthough it is true that the virus continues to circulate and mutate, the possibility of a future surge, much less one that will necessitate emergency measures on par with what the world experienced in the first half of 2020, is speculative at best.”  Appellants do not confront the speculative nature of the future threat they allege, and instead invoke a generalized refrain that any restriction on their religious freedom causes irreparable harm.  This argument, such that it is, does not address the Court of Chancery’s analysis or carry Appellants’ burden to establish subject matter jurisdiction.  The importance of Appellants’ constitutional rights is not disputed, but it also is not dispositive.  The fact remains that, by the time Appellants filed suit, the Challenged Restrictions had been lifted, the Governor had entered into a binding agreement not to impose future restrictions targeting Houses of Worship, and the apprehension of a future pandemic and conditions like those of the early days of the emergency was hypothetical and speculative.  This Court “decline[s] to render an advisory opinion on a hypothetical scenario.”...

... [T]he Superior Court correctly held that Appellants’ injury could not be redressed through a prospective declaratory judgment.  In much the same way that Appellants’ irreparable harm argument crumbled because the Challenged Restrictions no longer were in effect and any future action imposing similar restrictions was speculative, the declaratory judgment sought in the Superior Court would not alter the status quo.  Moreover, Appellants’ constitutional rights would not be restored or further protected by declaratory relief because the complained-of harm had long since ceased and the threat of future harm was speculative....

The Delaware Supreme Court also concluded that a damage action against the Governor was barred by the Delaware State Tort Claims Act and qualified immunity.

Recission of Covid Mandate Did Not Totally Moot Navy SEALs' RFRA Challenge

 In U.S. Navy SEALs 1-26 v. Austin, (ND TX, Feb. 14, 2024), a Texas federal district court held preliminarily that the rescission of the military's Covid vaccine mandate only partially mooted a suit under the Religious Freedom Restoration Act brought by Navy SEALs who were denied a religious accommodation. The court said in part:

Plaintiffs’ supplemental briefing satisfies the Court that, “[w]hile the Mandate may be gone, the effects of that Mandate and the discriminatory treatment the Class Members were subject to because of the Mandate still linger.” That is because Defendants have announced no changes to its overarching religious accommodations process. According to Plaintiffs, this allegedly “sham” process is what enabled the coercive and discriminatory treatment of the Class Members while their accommodation requests sat unadjudicated. The Mandate simply served as the catalyst that unveiled the problems with this broader process during the pandemic. These problems include: (1) indefinitely sitting on requests for religious accommodation; (2) foregoing the required individualized assessments, citing standardized policy memos (even if outdated) to satisfy the compelling interest requirement, and using boilerplate statements to suffice for demonstrating that the Navy’s action is the least restrictive means; (3) permitting discrimination and coercive tactics to pressure servicemembers to forego their religious beliefs; (4) authorizing Navy leadership to dictate denial of all requests without considering the individual circumstances of the requests and current conditions or facts; (5) permitting coercion and retaliation against commanding officers who recommend approval of religious accommodations despite the chain of command’s desire that requests be denied; and (6) prohibiting resubmission of denied requests and updates to pending requests due to a change of job, location, or other relevant circumstances.

First Liberty Institute issued a press release announcing the filing of the lawsuit.

3 Courts Rule on Claims for Religious Exemptions from Covid Vaccine Mandates

Last week, federal district courts in three states handed down decisions in cases in which a former employee was suing his or her employer for refusing to provide them with a religious exemption from the employer's Covid vaccine mandate.

In Crocker v. Austin, (WD LA, June 22, 2023) a Louisiana federal district court dismissed as moot a suit for injunctive relief brought by seven military service members who faced involuntary separation from the Air Force when they filed suit. However, in January 2023 the military rescinded the vaccine mandate and updated personnel records to remove any adverse actions associated with the denial of requested exemptions. Any remaining suit for damages falls under the Tucker Act and must be brought in the Court of Federal Claims.

In Leek v. Lehigh Valley Health Network, (ED PA, June 23, 2023), a Pennsylvania federal district court refused to dismiss a Title VII religious discrimination claim filed by a nurse who was denied religious exemptions from a hospital's requirement to receive Covid and influenza vaccines. The hospital claimed that the nurse's objections were not religious in nature. The court held that the nurse's belief that chemical injections may make her body impure in the eyes of the Lord, and her objections to some vaccines because they were developed using aborted fetal cells, are both religious objections.  The fact that some of her other objections were more medical or political did not negate the presence of religious objections.

In Algarin v. NYC Health + Hospitals Corp., (SD NY, June 23, 2023), a New York federal district court dismissed claims by an Internet technology professional at a health care facility that denial of his request for a religious exemption from the state's Covid vaccine mandate violated Title VII and the New York State and City Human Rights Laws. The court disagreed, holding that requiring the employer to violate a state rule would place an undue burden on the employer. The court also rejected plaintiff's 1st Amendment free exercise claim, finding that the vaccine mandate was a neutral law of general applicability.

9th Circuit: U.S. Has Not Waived Sovereign Immunity For Damages Under RFRA

In Donovan v. Vance, (9th Cir., June 13, 2023), the U.S. 9th Circuit Court of Appeals held that claims for injunctive and declaratory relief by Department of Energy employees who objected to the government's Covid vaccine mandate are moot because the Executive Orders being challenged have been revoked. Insofar as employees with religious objections to the vaccine were seeking damages, the court held that the United States has not waived sovereign immunity for damages under RFRA. Plaintiffs had sued federal officials in their official capacity.

5th Circuit: FFRF's Suit Against Texas Governor Is Moot

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., Jan.  27, 2023), the U.S. 5th Circuit Court of Appeals held that FFRF's suit against the Governor of Texas for wrongfully removing its display from the state Capitol became moot when the Texas State Preservation Board repealed the rule that had allowed private displays in the Capitol. The court said in part:

It is not seriously disputed that the Foundation’s exhibit satisfied the requirements for display or that the Board’s removal of the exhibit violated the First Amendment restrictions concerning speech communicated in a limited public forum. ...

Because the Foundation’s injury is premised on exclusion from expressing its message in a public forum, and because the public forum no longer exists, the permanent injunctive relief ordered by the district court cannot remain.

The court, however, refused to vacate the trial court's order and declaratory judgment, saying that "they might provide important guidance to future disputes." (See prior related posting.)

3rd Circuit: Challenge to COVID Limits on Worship Services Is Moot

In Clark v. Governor of the State of New Jersey, (3d Cir., Nov. 28, 2022), the U.S. 3rd Circuit Court of appeals in a 2-1 decision held that a challenge by two Christian congregations and their pastors to former COVID limits on in-person worship services is moot. The court affirmed the trial court's dismissal of the suit.  In the case, plaintiffs challenged orders by the Governor of New Jersey that limited religious gatherings while permitting certain essential secular activities to continue. The majority said in part:

Appellants offer nothing more than speculation to suggest that we have a live controversy here. They invite us to hypothesize about future scenarios in which (a) not only does the COVID-19 pandemic reach crisis levels comparable to early-2020, but (b) New Jersey’s executive officials will choose to ignore everything—both legal and factual—we have learned since those early months and bluntly reintroduce legally-suspect gathering restrictions on religious worship. This will not do, and we will therefore affirm.

Judge Matey dissented, saying in part:

[N]o lively imagination is needed to conjure up future competitions between public health and religious liberty given the volatility of respiratory viruses, the increased probability of future pandemics, and the routine declaration of “emergencies” by Governor Murphy. I would take the opportunity to provide an answer now, giving the people of New Jersey, and its representatives, the guidance they are entitled to under the Constitution.

Cert. Denied in Mootness Dismissal of Free Exercise Challenge to Mask Mandate

The U.S. Supreme Court this morning denied review in Resurrection School v. Hertel, (Docket No. 22-181, certiorari denied 10/31/2022). (Order List.) In the case, an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. (See prior posting.)

Christian Mission's Suit Over Sex Offender Statute Is Moot

In City Union Mission, Inc. v. Sharp, (8th Cir., June 10, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by an organization that offers meals, shelter and a Christian Life Program for men seeking help with life skills and addiction. At issue was whether a state statute barring sex offenders from being present or loitering within 500 feet of a children's playground is constitutional. The court held that the statute does not apply to the Mission because it does not allege that its clients are loitering when they are receiving services. Therefore its suit seeking an injunction is moot.  Its claim for damages against the former sheriff who enforced the statute were dismissed on qualified immunity grounds. The court said in part:

we can find no “controlling case” or “robust consensus of cases of persuasive authority” that would have notified Sheriff Sharp that Affected Persons had a clearly established right to seek City Union Mission’s services in a building located within 500 feet of a park containing playground equipment.

Judge Kobes filed a concurring opinion.

Parents Can Move Ahead With Challenge To School's Transgender Transition Policy

 In T.F. v. Kettle Moraine School District, (WI Cir. Ct., June 1, 2022), a Wisconsin state trial court held that parents could proceed with their action challenging a school district's policy to honor minor students’ requests to transition to a different gender identity at school without parental consent. One set of plaintiffs withdrew their child from the school after the school insisted on using the name and pronouns favored by the student. The court held that they could still proceed with a claim for nominal damages. As to other plaintiffs whose children were in the school but were not presently impacted by the policy, the court said in part:

[Parents] need not wait for potential harm from Kettle Moraine’s policy to occur for their children before they are entitled to seek declaratory relief on whether the policy violates their parental rights.

ADF issued a press release announcing the decision. 

6th Circuit En Banc Dismisses Mask Mandate Challenge As Moot

In Resurrection School v. Hertel, (6 Cir., May 25, 2022), an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. The mandate is no longer in effect. The suit was brought by a private religious school and two parents of school children. One judge concluded that the preliminary injunction appeal moot, but the proceedings for a declaratory judgment and permanent injunction are not. The majority said in part:

For all the reasons recited above—the changed circumstances since the State first imposed its mask mandate, the substantially developed caselaw, the lack of gamesmanship on the State’s part—we see no reasonable possibility that the State will impose a new mask mandate with roughly the same exceptions as the one originally at issue here. This claim is moot—indeed palpably so.

Judge Bush in a 31-page dissent joined by two other judges said in part:

[T]he majority’s decision to declare the entire case against MDHHS moot—rather than simply deciding the preliminary-injunction appeal—has stripped us of a valuable opportunity to clarify the law of our circuit. What the majority should have done, instead, is rule solely on the interlocutory order before us.

Fox2 Detroit reports on the decision.

Appeals Court Asked To Dismiss Michigan Abortion Law Challenge

As previously reported, In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, the Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. On Friday, instead of filing an appeal in that case, plaintiffs filed a Complaint (full text) with the Michigan Court of Appeals captioned In re Jarzynka, (Ct. App., filed 5/20/2022) seeking an Order of Superintending Control and filed a Motion for Immediate Consideration.  In the Complaint, petitioners allege:

Judge Gleicher refused to dismiss the case for lack of jurisdiction even though the Attorney General—a preeminent supporter of abortion rights—admits there is no adversity between the parties or actual controversy because the Attorney General refuses to defend or enforce the challenged law. The ACLU and Planned Parenthood’s claims are obviously moot and not ripe.

Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask this Court to issue an order of superintending control requiring the Hon. Elizabeth Gleicher of the Court of Claims to dismiss the case for lack of jurisdiction. Doing so will not prevent other adverse cases from moving forward.... 

At a minimum, Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask the Court to issue an order vacating the preliminary injunction order and requiring Judge Gleicher to adhere to the objective appearance-of-impropriety standard and recuse herself.

ADF issued a press release announcing the filing.

10th Circuit: Muslim Terrorism Inmate Can Sue Under RFRA For Damages

In Ajaj v. Federal Bureau of Prisons, (10th Cir., Feb. 9, 2022), the U.S. 10th circuit Court of Appeals reversed a Colorado federal district court's dismissal of a religious freedom suit brought by an inmate who is serving a sentence of 114 years for terrorist acts related to the 1993 World Trade Center bombing. The court summarized its holding:

Ahmad Ajaj, a practicing Muslim, ... sued to obtain injunctive relief against BOP and damages from BOP officials [alleging] violations of his rights to free exercise of religion under the Religious Freedom Restoration Act (RFRA).... He contends that the district court erred by holding (1) that his claim against the BOP for denial of his right to group prayer was moot and (2) that RFRA did not provide a claim for damages against government officials in their individual capacities.... [W]e ... reverse the challenged rulings. The mootness ruling was based on a misconception of the evidence....  And the Supreme Court has now ruled in Tanzin v. Tanvir ... that damages claims are permissible under RFRA.... We reject Mr. Ajaj’s contention that the doctrine of qualified immunity is inapplicable to RFRA claims, but we decline to resolve whether the individual defendants in this case have shown entitlement to qualified immunity, leaving that matter to the district court in the first instance.

10th Circuit Affirms Dismissal Of Churches Challenge To Colorado COVID Restrictions

In Denver Bible Church v. Polis, (10th Cir., Jan. 24, 2022), the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado.  It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state.  The court dismissed most of the claims against the state on mootness grounds, finding that changes in state restrictions have lifted all COVID limits on churches. The facial challenge to the state's emergency disaster statute was dismissed because the statute is neutral and generally applicable.  The court then dismissed for lack of standing plaintiffs' claim that the federal government violated RFRA by distributing COVID relief aid to Colorado while the state was violating plaintiffs' free exercise rights.

Challenge to Louisiana COVID Worship Restrictions Dismissed As Moot

In Spell v. Edwards, (MD LA, Jan. 12, 2022), a Louisiana federal district court, on remand from the 5th Circuit, again dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The court explained:

On July 6, 2021, the U.S. Court of Appeals for the Fifth Circuit vacated this Court’s November 10 dismissal order, and remanded with instructions to reconsider Plaintiffs’ First Amendment Free Exercise Clause claim in light of new guidance from the U.S. Supreme Court, specifically, Roman Catholic Diocese of Brooklyn v. Cuomo, ... South Bay United Pentecostal Church v. Newsom, ... and Tandon v. Newsom....

Now, with the benefit of the Supreme Court’s guidance, the Court reaches the same result as before: Plaintiffs’ consolidated actions will, again, be dismissed. In short, the Supreme Court’s most recent jurisprudence cannot save Plaintiffs’ claims for injunctive relief because the challenged restrictions have expired on their own terms and there is no indication whatsoever that crowd-size limits on indoor assembly will be reinstated. Thus, an injunction is a moot point. Further, Plaintiffs’ demand for damages fails because there is not now, and never has been, a “clearly established” right to unrestricted religious assembly.... Thus, Defendants are shielded from liability by qualified immunity.

RNS reports on the decision.

7th Circuit: Church's Suit Against Rescinded COVID Order Is Moot

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., Jan. 11, 2022), the U.S. 7th Circuit Court of Appeals affirmed an Illinois federal district court's denial of an injunction against a now-rescinded COVID order by the Governor of Illinois limiting the number of people who could attend a religious service. The district court based its decision on mootness grounds, even though the 7th Circuit had previously held the case was not moot. The 7th Circuit now said however:

More than 19 months have passed since they were last subject to an attendance limit, and the Governor has not suggested that another is likely.  A legal conclusion that a rescinded order violated the Constitution would not entitle anyone to an injunction....

Deposit Of Nominal Damages Does Not Moot Student's Claim In Remand From Supreme Court

In March in Uzuegbunam v. Preczewski, the U.S. Supreme Court held that a college student's suit for nominal damages was not mooted when the school changed its challenged policies.  The case involves a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature and proselytizing on campus. (See prior posting.) Now on remand, defendants sought to obtain dismissal of the case by depositing nominal damages of $2 with the court and having it paid over to plaintiffs. In Uzuegbunam v. Preczewski, (ND GA, Dec. 22, 2012), a Georgia federal district court held that this would not moot the case.  ADF issued a press release announcing the district court's decision.

Challenge To Superseded COVID Order Dismissed As Moot

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug. 16, 2021), a New Jersey federal district court dismissed as moot a challenge to a now superseded COVID-19 executive order by the governor of New Jersey limiting the number of people who could attend an indoor religious service. The court also held it will abstain under the Younger doctrine.

Challenge To Virginia's COVID Restrictions On Worship Services Dismissed As Moot

 In Tolle v. Northam, (ED VA, July 29, 2021), a Virginia federal district court dismissed as moot a lay minister's challenge to the Virginia governor's now-terminated COVID-19 orders.  Those orders had caused plaintiff's church to stop offering public worship services and otherwise limited gatherings for religious worship.

8th Circuit: Challenge To Church Capacity Limits Dismissed On Mootness and Standing Grounds

 In Hawse v. Page, (8th Cir., July 30, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, dismissed on standing and mootness grounds challenges to St. Louis County, Missouri's now-superseded COVID-related limit on the number of persons who could attend church services. The majority said in part:

Whether or not the churches were formally closed in April 2020, the complaint is bereft of an allegation that but for the Order, the churches attended  by the appellants would have allowed groups of ten or more persons to gather in the early weeks of the pandemic.

Judge Stras filed a dissenting opinion.