Freedom of Religion

Federal District Court in Kentucky Enjoins Application of Governor’s Order to Drive-in Church Services

Fire Christian Center, Inc. v. Fischer, 2020 WL 1820249 (W.D. Ky. 4/11/20).

Written by: Ken Ciccoli

As a response to the ongoing coronavirus pandemic and to further emphasize Kentucky’s social distancing order, on April 9, 2020, the mayor of Louisville, Greg Fischer, ordered police forces to dismantle all in-person church services. This order, issued four days before Easter, banned even “drive-in” gatherings in which practitioners were poised to stay in their vehicles throughout the entire service. On Fire Christian Center (OFCC), having already planned a drive-in Easter service, filed a temporary restraining order, seeking injunctive relief from the United States District Court for the Western District of Kentucky to stop the mayor from carrying out his restrictive interpretation of the State’s social distancing order. The district court granted the temporary restraining order, holding that despite his good intentions, the mayor’s order was unconstitutional.

The court opened its opinion with an overview of the long and sordid history of religious persecution in the United States. It began with the plight of the Pilgrims and their quest to be free of religious prosecution. It then detailed instances when religious freedom has been neglected in American history, such as slaves being beaten for attending prayer gatherings, the disparaging treatment of Mormons, and the exclusion of Jewish students from universities.

After that emotional introduction, the court applied a four-part test for determining whether to issue a temporary restraining order. First, the court determined first that OFCC had a strong likelihood of success on the merits on both its Free Exercise claim and its statutory claim under Kentucky’s Religious Freedom Restoration Act. The Court held that the mayor’s order likely violated the church’s free exercise rights because the mayor’s order was non-neutral between religious and non-religious conduct and therefore triggered strict scrutiny. The order was discriminatory because it forbid drive-through religious services while permitting non-religious drive-through arrangements, including those of liquor stores and ice cream shops. The court also found that the Kentucky Religious Freedom Restoration Act barred enforcement of the order.

Having found that OFCC was likely to succeed on the merits, the court then explained why OFCC would suffer irreparable injury without a temporary restraining order. “The loss of First Amendment freedoms, for even minimal periods of time,’” the court said, “unquestionably constitutes irreparable injury.” Additionally, the balance of equities tipped in OFCC’s favor, the court held, because churchgoers would be giving up a fundamental right by skipping church services (or facing arrest if they did attend). Finally, the court explained that an injunction is in the public interest because there was no evidence that drive-through church services were more likely to spread the coronavirus than other open parking lot arrangements permitted under the order.

The United States District Court for the Western District of Kentucky concluded by admitting that while its decision might be disagreeable to many, it was one meant to protect OFCC’s, and other believers’ right to practice their Christian faith, as guaranteed by the First Amendment.

Supreme Court, in a 5-4 decision, refuses to stay the application of California occupancy limits on religious worship services

South Bay United Pentecostal Church v. Newsom, 590 U.S. ___ (2020).

Written By: Lea Solakian

California Governor Gavin Newsom’s Executive Order limits the attendance at places of worship to a 25% capacity or a maximum of 100 attendees while exempting secular businesses such as grocery stores and banks from any capacity limit. In response to this discrepancy, South Bay Pentecostal Church sought to enjoin application of the law to in-person religious services. A district court declined to order emergency relief, and the Ninth Circuit subsequently denied the Church’s motion for injunctive relief pending appeal. On May 29, 2020, the Supreme Court, by a 5 to 4 vote, summarily denied the Church’s application for temporary injunctive relief. Chief Justice John Roberts wrote a concurring opinion for himself, and Justice Kavanaugh wrote a dissent to the denial of the application, which was signed by Justice Clarence Thomas and Justice Neil Gorsuch.

Chief Justice Roberts, in his concurring opinion, stated that the Order does not run afoul of the Free Exercise Clause under the First Amendment. Although not expressly stated, Roberts implicitly found that the California Order was a neutral law of general applicability that was not targeted at religious practice. Analogizing places of worship to the shut down and secular businesses like concert halls and movie theaters, he noted that all result in large groups of people gathering in long term close contact. Moreover, he distinguished the exempt secular businesses under the Order, such as laundromats and banks, in that people neither convene in large groups nor remain in close proximity for a long time. “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” South Bay Pentecostal Church v. Newsom, No. 19A1044, slip op. at 2 (Roberts, J., concurring) (quoting Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905)). Thus, he determined that Governor Newsom’s actions are wholly constitutional.

In sharp contrast, Justice Kavanaugh dissented, finding that the Order violated the First Amendment by discriminating against religious practice. He stated that the problem with the Order is that similar secular businesses such as pharmacies and grocery stores are not subject to the 25% occupancy cap. What is more, he pointed out, is that the Church is willing to follow social distancing guidelines that apply to these similar secular businesses. He noted that although states have the authority to “draw lines” during an emergency, the Constitution forbids states from discriminating against religion. South Bay Pentecostal Church v. Newsom, No. 19A1044, slip op. at 2 (U.S. May 29, 2020) (Kavanaugh, J., dissenting). There are other nondiscriminatory ways that California could mitigate the spread of COVID-19, Justice Kavanaugh detailed. For example, California could mandate that places of worship abide by social distancing guidelines or impose an occupancy limit on all businesses. However, absent a compelling justification for this disparate treatment, he believes that California cannot merely assume that the spread of the virus will worsen by sitting in a church pew as opposed to walking down a grocery store aisle. Ultimately, he concluded that enforcing the Order will cause the Church irreparable harm by not being able to conduct its Sunday Services.  

Maine District Court Upholds Gathering Limits for Churches

Calvary Chapel of Bangor v Mills, 2020 WL 2310913 (D. Me. May 9, 2020).

Written by: Nathaniel Belluso

The United States District Court for the District of Maine recently denied injunctive relief to Calvary Chapel of Bangor, which had sought an exemption from the governor’s order limiting public gatherings.  Due to the COVID-19 pandemic, the governor of Maine put in place several orders attempting to reduce the spread of the virus and reduce possible infection. These orders include the “Gathering Orders,” which prohibited “gatherings of more than 10 people … throughout the state.” Calvary Chapel of Bangor v. Mills, 1:20-CV-00156-NT, 2020 WL 2310913, at *4 (D. Me. May 9, 2020). There was also orders for when the state began opening up its economy, called “Restarting Maine’s Economy,” in which churches were allowed to conduct “limited drive-in, stay-in-your-vehicle church services.” Id. at *3. Depending on the spread of the virus, churches might eventually have the opportunity to conduct services with up to 50 people depending on the state of the virus.

Calvary Chapel petitioned the Court for injunctive relief claiming that these orders violated their Free Exercise rights under the First Amendment by not allowing them to conduct their services as usual (with more than 10 people). Chapel argued that these Orders were not neutral laws of general applicability but instead targeted places of worship. Chapel contended that the laws were not generally applicable because they did not apply to many secular businesses such as liquor and grocery stores, which were allowed to operate with more than 10 individuals present at the same time. Id. at *5, *8.

The Court began its analysis by stating the governor’s orders did not place a “significant burden on Calvary Chapel’s religious beliefs.” Other courts around the country have held that an occupancy limit on places of worship to no more than 10 people and a ban on allowing for drive-in services do not violate the First Amendment. Id. at *7. “A community has the right to protect itself against an epidemic of disease which threatens the safety of its members” and during an ongoing national emergency, the “traditional tiers of constitutional scrutiny do not apply.” Id. (quoting Jacobson v. Commonwealth of Mass., 197 U.S. 11, 27 (1905)).  Jacobson instructs courts to overturn state action, such as Governor Mills’ orders, when it lacks a “real or substantial relation to the protection of the public health.” Id. Ultimately, the Court found that the Orders in Maine were necessary to protect its citizens from the spread of COVID-19.

Under the traditional Free Exercise analysis, “‘neutral, generally applicable laws’ that do not target religious practice are subject to a rational basis review.” Id. A law would violate Free Exercise if it was enacted “because of religious practice” and intended to interfere with it. Id. The Court found these orders were neutral as they did not specifically target religious practice, nor were they enacted with any animus toward religious organizations.  Additionally, the “Gathering Orders” were generally applicable because they applied to all places where “people sit together in an enclosed space to share a communal experience” like schools, movie theaters, concert halls, sports venues, and religious venues. Id. at *9. These restrictions, the Court notes, were placed “equally on all types of conduct that are likely to spread COVID-19.” Id.  These types of “communal” locations differ from grocery and liquor stores as people shopping get what they need “as quickly as possible, check out, and promptly leave.” Id. at *8.

Little is known about the virus; it spreads rapidly from people in close contact with one another and there is not currently an effective vaccine or treatment that would make fighting the virus any easier. In closing, the Court reiterated that the “Gathering Orders” serve to limit the spread of COVID-19, “a highly contagious illness that spreads more easily through close contact.” Id. at *2.

Sixth Circuit Court of Appeals Enjoins Kentucky Governor from Enforcing Orders Prohibiting Drive-in Church Services

Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2012).

Written By: Lea Solakian

Kentucky Governor Andy Beshear issued two COVID-19 orders that prohibited places of worship from holding drive-in and in-person worship services regardless if they abide by the same social distancing guidelines that are in place for secular businesses. The first order, issued on March 19, 2020, prohibited “[all] mass gatherings,” “including, but not limited to, community, civic, public, leisure, faith-based, or sporting events.” Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, slip op. at 2 (6th Cir. May 2, 2020). This order allowed secular business to function such as shopping malls, train stations, or grocery stores where large numbers of people gather but maintain social distancing. The second order was issued on March 25, 2020, and required all organizations that are “not life sustaining” to close. Id. Under this order, religious organizations are not “life sustaining,” except when functioning as “food, shelter, and social services.” Id. On April 12, 2020, Maryville Baptist Church held a drive-in Easter Service where congregants listened to a sermon over a loudspeaker while parked in their cars in the church’s parking lot. That same day, Kentucky State Police arrived and issued notices to the congregants that participating in the drive-in service amounted to a criminal act. The police also sent letters to the vehicle owners mandating that they self-quarantine for 14 days or risk further sanction.

The Church filed an emergency motion for a temporary restraining order, arguing that these orders and actions by the police violated congregants’ rights under the Kentucky’s Religious Freedom Restoration Act and free-exercise rights under the First and Fourteenth Amendments of the U.S. Constitution. A district court denied the Church’s motion whereby the Church filed an interlocutory appeal to the Sixth Circuit Court of Appeals. Pending appeal, the Church also sought a stay of the orders because its upcoming drive-in service was scheduled for the next day. 

In deciding to grant the stay, the Sixth Circuit concluded that the Church is likely to succeed on its claims. Under Kentucky’s Religious Freedom Restoration Act, the government is prohibited from substantially burdening an act motivated by one’s religious beliefs absent clear and convincing evidence that it has used the least restrictive means to further a compelling government interest. Id. at 4. The Court noted that this law serves to provide Kentucky citizens with more protection of religious liberties at the state level than the federal level under the U.S. Constitution. The orders and police’s actions blatantly and substantially burdened the congregants’ religious beliefs. Id. Although the Governor has a compelling interest of mitigating the spread of COVID-19, the Court stated that he did not do so by using the least restrictive means. Id.

Most notably, the Court emphasized that the orders treat religious and similar secular activities differently. The orders permitted in-person business meetings with social distancing even though the Court could find no relevant distinction between these meetings and drive-in church services with social distancing. Similarly, the Court observed that, at the same time that police officers were informing congregants that their presence at the drive-in Easter Sunday service was criminal, hundreds of cars were permissibly parked in grocery store parking lot less than a mile away. Not only were the orders discriminatory, the Court said, they were also not ones of general applicability. Id. at 6. “As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law.” Id. at 6 (citing Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012)). Although the Governor stated that there are no exceptions under the orders, the orders allow “life sustaining” businesses to function but exclude worship services from that definition. As the Court pointed out, the health risk from waiting in a car to hear the morning prayers is no greater than the risk from waiting in a car for a liquor store to open. Ultimately, the Court concluded that despite the Church’s willingness to abide by social distancing guidelines, the Governor failed to articulate any good reason for permitting secular businesses to operate with social distancing but not houses of worship. Prohibiting congregants from attending any service between now and when the orders were scheduled to be lifted inflicted irreparable harm on the congregants and the Church. The Court, therefore, granted the Church’s motion.

United States Court of Appeals for the Fifth Circuit Deems Life Tabernacles Church’s Appeal Moot

Spell v. Edwards, 962 F.3d 175 (5th Cir. 2020).

Written by: Ken Ciccoli

On March 11, 2020, Louisiana Governor Edwards declared the COVID-19 outbreak a public health emergency. Weeks later, Governor Edwards issued a stay-at-home-order and postponed or cancelled gatherings of ten or more people. On May 7 2020, after repeatedly defying the Governor’s order, the Life Tabernacle Church in Baton Rouge, Louisiana sought permanent injunctive relief, damages, and a preliminary injunction to stop enforcement of the orders, asserting several federal and state constitutional claims. The Middle District of Louisiana denied the requested relief on May 15 2020, and before the case reached the United States Court of Appeals for the Fifth Circuit, the Governor’s order expired, rendering the case moot.

On appeal to the Fifth Circuit, the Life Tabernacle Church challenged the district court’s denial of preliminary injunction. The Fifth Circuit explained that a law’s automatic expiration will moot a case, and that “Governor Edwards’s stay-at-home orders expired by their own terms.” Spell v. Edwards, 962 F.3d 175, 179 (5th Cir. 2020). The church argued that the issue is “capable of repetition, yet evad[es] review,” thus saving it from mootness. Id. at 180. This exemption keeps a case alive when “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the plaintiffs will be subject to the same action again.” Id. However, the church’s argument failed, according to the Fifth Circuit, in that the chances of the Governor re-imposing a similar restriction are speculative at best. Therefore, the court concluded that there is no expectation that the Church will be subject to the same action again.

Judge Ho, issued a concurring opinion, stating that stay-at-home orders restricting religious gatherings cannot remain constitutional because protestors have recently been exempted from those orders. He pointed out that while neutral laws of general applicability may be protected from challenges under the Free Exercise Clause, this does not mean laws granting “exemptions to some, while denying them to people of faith” are constitutional. Id. at 181. Instead, Ho argued that laws burdening religious activities while exempting non-religious activities must pass strict scrutiny—they must be justified by a compelling governmental interest and narrowly tailored to advance that interest. Future stay-at-home orders will not survive strict scrutiny in Louisiana, Ho speculated, if Louisiana continues to ban gatherings for religious purposes while permitting and even commending protest gatherings for free speech purposes. “In law as in life,” Judge Ho observed, “what’s good for the goose is good for the gander.” Id at 183.

Tabernacle Baptist Church Hopes to Hold In-Person Services

Tabernacle Baptist Church v. Beshear, 2020 WL 2305307, No. 3:20-cv-00033-GFVT, slip op. (E.D. Ky. May 8, 2020).

Written by: Victoria Ashley Partington

On March 19, 2020, Kentucky’s Secretary of the Cabinet for Health and Family Services issued an order prohibiting mass gatherings, which included faith-based events and gatherings. As a reinforcement, on March 25, 2020, Kentucky’s Governor Beshear issued an additional executive order mandating that all non-life sustaining businesses close. Religious organizations were excluded from the “life sustaining” category, while entities such as hardware stores, laundromats, law offices, and liquor stores were allowed to remain open. Abiding by the orders, Tabernacle Baptist Church ceased holding in-person religious services and alternatively broadcasted services online or held drive-in services. However, the church felt uneasy about those methods, considering them “cold comfort” because they “do not meet the Lord’s requirement that the church meet together in person for corporate worship.” Tabernacle Baptist Church v. Beshear, No. 3:20-cv-00033-GFVT, slip op. at 3 (E.D. Ky. May 8, 2020). Thus, the church sued Governor Beshear arguing that his order violated its First Amendment rights to free exercise of religion and freedom of assembly, and that the orders were not narrowly tailored to safeguard the public’s health and safety. Despite Governor Beshear’s intent to slow the spread of the virus, the district court found no compelling reason for the order, and therefore, granted the church a temporary restraining order. 

In its analysis, the court stated that fundamental civil liberties may be subject to reasonable restrictions when required to ensure the public’s health. At the same time, the court emphasized that the “power of a local community to protect itself against an epidemic . . . might go so far beyond what was reasonably required for the safety of the public, as to authorize the courts to interfere.” Id. at 8 (quoting Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 28 (1905)). The Supreme Court has held that the Free Exercise Clause of the First Amendment does not exempt religious observers from having to abide by neutral law of general applicability. But, in this case, the court found that Governor’s order was not neutral and generally applicable because it treated houses of worship differently than other businesses which were allowed to remain open, provided they followed social distancing guidelines. Consequently, the court held that the Governor’s order was subject to strict scrutiny, meaning it must be necessary to further a compelling governmental interest. Tabernacle Baptist Church v. Beshear, No. 3:20-cv-00033-GFVT at 9.

The order held that the Governor’s order failed strict scrutiny because it went beyond what was reasonably necessary to protect the public’s safety. The court reiterated that there is no evidence that the risk of contagion is heightened in a religious setting than in the secular business settings permitted under the order. “If social distancing is good enough for Home Depot, it is good enough for in-person religious services.” Id. at 10. The court concluded Tabernacle Baptist Church established a likelihood of success on the merits with respect to their free exercise claim because (1) its injury was irreparable, (2) by gathering while following social distancing guidelines, there is no harm to the defendants, and (3) public interest favors the enjoinment of a constitutional violation. Id. at 11. Ultimately, the court granted the church’s motion on the condition that it follows the social distancing guidelines per the Center for Disease and Control.

U.S. District Court of Maryland Rejects Claims Against Governor Hogan For Constitutional Violations

Antietam Battlefield KOA v. Hogan, Civil Action No. CCB-20-1120 (D. Md. 2020)

Written By: Uri Simms

On May 5th, 2020, the United States District Court of Maryland rejected a host of claims by several plaintiffs including state delegates, army veterans, religious leaders, an amusement park, and a 22,000 member organization seeking redress against Governor Larry Hogan for a plenary of constitutional violations resulting from a series of executive orders enacted between March 5th – March 30th, 2020. In the wake of the Covid-19 pandemic, Governor Hogan executed a series of measures aimed at slowing the spread of the deadly virus. Amongst other actions the Governor’s orders: precluded gatherings of more than 10 people; limited religious congregations to operate at only 50% capacity for indoor services; and required individuals to wear a mask or face covering or be subject to misdemeanor charges, which could result in a penalty of imprisonment for up to one year, a fine of up to $5,000, or both. Although the policies enacted by the Governor were amended after the plaintiffs’ complaint was filed and life for the plaintiffs began to resemble what they sought from a favorable ruling, the Court nevertheless decided to proceed with an analysis of the constitutionality of the Governor’s orders because of the possibility that the more restrictive measures could be reenacted.

The District Court denied the plaintiffs’ motion for injunctive religion, concluding that the plaintiffs had failed to show a likelihood of success that any harm to them resulted from a constitutional violation. The Court relied heavily on Title 14 of the Maryland Code for Public Safety, Section 14-3A-03, a statute which grants Governor Hogan the power “to order evacuation, closing, or decontamination of any facility, and to order individuals to remain indoors or refrain from congregating.” The Court determined that the Governor had a compelling interest in slowing the spread of Covid-19 and had the power to do so by utilizing the state’s police power to regulate businesses within the state of Maryland,

In cases where plaintiffs allege violations of freedom of speech, assembly, or the free exercise of religion due to government responses to the coronavirus, courts typically defer to the public health decisions made by elected officials. Courts find support for this deferential approach in the Supreme Court’s 1905 decision of  Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which upheld the authority of a state to enforce compulsory vaccinations to curtail the spread of smallpox. As Justice Harlan explained in the majority opinion, “The court’s role is not to usurp the functions of another branch of government in deciding how to best protect public health, as long as the measures are not arbitrary or unreasonable.”   Following Jacobson’s principle of deference, lower courts are unlikely to invalidate government orders aimed at preventing the spread of a deadly disease, just as the Court did in this case.

Sixth Circuit Allows Congregants of Kentucky Church to Attend Services During Pandemic Despite Governor’s Ban

Roberts v. Neace, No. 20-5465, 958 F.3d 409 (6th Cir. 2020).

Written by: Nathaniel Belluso

The Sixth Circuit Court of Appeals in Kentucky granted an injunction pending appeal to the parishioners of Maryville Baptist Church. The Court enjoined the Governor and other officials from enforcing two orders that prohibited in-person services even if worshippers adhered to the social distancing guidelines applicable to other “life-sustaining” entities. Roberts v. Neace, No. 20-5465, 958 F.3d 409, slip op. at 10 (6th Cir. 2020). Both orders arose out of a concern for the spread of COVID-19. The same church had previously received an injunction from a district court for the Western District of Kentucky, which enjoined enforcement of the orders’ ban on in-person worship. Id. at 3-4 (citingMaryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH-RSE (W.D. Ky. May 8, 2020)).

The parishioners claimed that their free-exercise rights under the First Amendment were violated by the orders, which prevented them from attending “faith-based” “mass gatherings”. Id. at 2. The first order prevented mass gatherings relating to “community, civil, public, leisure, faith based, or sporting events.” However, the order exempted businesses such as airports, bus and train stations, shopping malls, and retail and grocery stores so long as individuals abided by social distancing guidelines. Id. The second order clamped down harder to prevent further spread of the virus by requiring all non “life-sustaining” organizations to close. This order defined those “life-sustaining” business as those which “allow Kentuckians to remain Healthy at Home” and did not include religious organizations as “life-sustaining” unless they provided “food, shelter and social services.” Id.

After attending an Easter service in violation of the orders, several of the Church’s congregants were issued “attendance is criminal” notices by police. In response, these congregants sued Governor Beshear and two other government officials, arguing that the orders violated the Free Exercise Clause and the right to travel under the U.S. Constitution. Although the district court denied relief on the free exercise claim, the court preliminarily enjoined Kentucky from enforcing its ban on interstate travel. Id.  at 3. The congregants appealed, seeking an injunction pending appeal on their free exercise claim. Id.  

The Sixth Circuit court opened its analysis by stating that the Governor’s orders preventing in-person worship services likely violated the Free Exercise Clause. Id. at 4. The Court felt that it would be difficult to have a law narrowly tailored enough to advance the state’s compelling interest. Id.  While the Court conceded the Orders were not motivated by “animus toward people of faith” and didn’t single out faith-based practices, the Court concluded that the numerous exceptions in the orders “remove[d] them from the safe harbor for generally applicable laws”. Id. at 5.

Although the orders allowed for only “life-sustaining operations,” the Court’s ruling pointed out that businesses “follow[ing] social-distancing guidelines and other health-related precautions” could continue to operate, and that this should also include “soul-sustaining” faith-based groups. Id. at 6. The Court’s analysis hinged on the question of whether the orders were tailored to the “least restrictive means” of accomplishing the state’s goal of preventing the spread of COVID-19. Id. at 8. The Governor argued that groups of people gathering in places of worship creates a greater risk of contagion than in other settings. Ultimately, the Court found this argument insufficient, and determined that the Orders did not meet “least restrictive means” test. Id.

Instead, the Court’s suggested that to satisfy the congregant’s First Amendment rights and the Governor’s necessity to slow the spread of the virus, services should have a capacity limit rather than being banned altogether. Id. at 9. With respect to “harm to others” and “public interest,” the Court stated that this injunction “appropriately permits … services with the same risk-minimizing precautions as similar secular activities” while permitting enforcement of social-distancing rules.” Id.

Seventh Circuit Refuses to Enjoin Illinois Governor’s Limit on Religious Assemblies

Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341 (7th Cir. 2020).

Written by: Victoria Ashley Partington

On May 10, 2020, in response to the COVID-19 pandemic, Illinois Governor, Jay Pritzker, instituted an order mandating that religious service gatherings be limited to no more than ten individuals. In response, Elim Romanian Pentecostal Church sued Governor Pritzker challenging the order by arguing that it violates the church’s First Amendment rights under the Free Exercise Clause, the Establishment Clause, and the right to speech and assembly. Elim Romanian requested a motion for a temporary restraining order (TRO) and preliminary injunction, both of which were denied by the United States District Court for the Northern District of Illinois Eastern Division.

The district court first wrestled with whether the church’s case had become moot when Governor Pritzker, on May 29, 2020, replaced his original Executive Order with a new one that permitted religious services conducted in accordance with Illinois Department of Public Health safe-distancing guidelines. The guidelines provided alternative methods of worship including online services, drive-in services, outdoor services, and limited indoor services with up to ten people. Illinois argued that the new order made the church’s lawsuit moot because it gave the church the relief it had been seeking.

In rejecting this argument, the Court of Appeals invoked the traditional rule that voluntary cessation of “contested conduct makes litigation moot only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341, 6-7 (7th Cir. 2020) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000)). Absent this rule, the court noted, a defendant could resume the challenged conduct as soon as the suit was dismissed. Id. at 7. The Court examined the list of criteria that would trigger the restoration of the Governor’s original Executive Order, including a rise in COVID-19 positivity rates, increased hospital admission, reduced hospital capacity, a significant outbreak in the region, and concluded that it was not “absolutely clear” these events would never reoccur and thus trigger the restoration of the original order. Id. at 6. Therefore, the court held that the dispute was not moot and moved on to the merits of the church’s original challenge in the district court.

The district court used a three-part test to determine whether the church was entitled to a temporary restraining order. The court held that Elim Romanian had failed to show any likelihood of success on the merits based on precedent set forth in Jacobson v. Massachusetts, a 1905 case which held that government has power to limit constitutional rights in order to combat a dangerous disease. The district court held that the original Executive Order had a direct relation to the current pandemic and is not a conspicuous violation of constitutional rights. Elim Romanian Pentecostal Church v. Pritzker, No. 20 C 2782, slip op. at 5 (N.D. Ill. May 13, 2020). Next, the district court determined that the original Executive Order passed the Lemon Test because it had a secular purpose, prevented the spread of COVID-19, neither advanced or prohibited religion, and in no way fostered government entanglement with religion. Id. at 9. Finally, applying a sliding-scale approach for issuing a temporary restraining order, the court held that Elim Romanian was unable to show that the scales weighed in their favor. The court concluded that the harm imposed on the church was minimal and outweighed by the government’s interest in protecting the public’s health and safety. Id. at 11. 

On June 12, 2020, Elim Romanian, along with Logos Baptist Ministries, appealed the case to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit agreed with the district court and held that Illinois had not violated the plaintiff’s First Amendment rights, although it used a different analysis to reach this conclusion. The Court of Appeals determined that the original Executive Order had not discriminated against religion when it classified religious gatherings with theaters and concerts and not with warehouses and soup kitchens. Activities such as soup kitchens, housing the homeless, meatpacking warehouses and care for the elderly, the court said, are treated as essential because they cannot be replaced by alternatives. By contrast, activities which can be replaced by alternatives, such as online streaming of concerts and performances, and drive-in worship services are not essential. Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341 at 11. Therefore, the court concluded that there had been no discrimination against religious gatherings and the Governor’s orders and guidelines pursuant to the original order did not violate the First Amendment, especially since concert halls and theaters had been closed since mid-March whereas houses of worship were allowed to remain open. Id.

North Carolina Court Grants Injunction Against Governor’s Executive Orders Limiting Church Gatherings

Berean Baptist Church v. Cooper, No. 4:20-CV-81-D, 2020 WL 2514313 (E.D. N.C. May 16, 2020).

Written by: Victoria Ashley Partington      

On March 27, 2020, North Carolina Governor, Roy Cooper, issued Executive Order 121 (EO 121) which ordered a stay-at-home mandate and permitted individuals to leave their homes only for “Essential Activities,” “Essential Governmental Operations,” and “Essential Business and Operations.” Berean Baptist Church v. Cooper, No. 4:20-CV-81-D, 2020 WL 2514313, at *3 (E.D. N.C. May 16, 2020). EO 121 listed thirty Essential Businesses and Operations which were permitted to open with proper social distancing and had no limit on the number of employees and customers allowed to gather except at the point of sale or purchase. Religious entities and funeral services were the only two categories included in the list of thirty that were subject to additional limitations. Religious entities were restricted to gatherings of ten individuals, and funerals were capped at fifty. Id. Later, on May 5, 2020, Governor Cooper issued Executive Order 138 (EO 138), which relaxed the stay-at-home order by permitting individuals to leave their homes “to worship or exercise First Amendment rights,” so long as services involving more than ten people are held outdoors “unless impossible.” Id. at *4.

On May 14, 2020, Berean Baptist Church filed a complaint with the United States District Court, Eastern District of North Carolina, Eastern Division seeking injunctive relief for the violation of its First Amendment rights, and requested a temporary restraining order (TRO), arguing that the ten person cap on gatherings and the outdoor requirement violated the Free Exercise Clause. On May 15, 2020, the district court held: (1) that EO 121 and EO 138 were not narrowly tailored to accomplish a compelling interest in protecting public health; and (2) that the equities tipped in favor of granting a TRO. The district court consequently issued a statewide injunction. Id. at *10-11.

The court held that EO 121 and EO 138 were not laws of neutral and general applicability because they are not neutrally applied between religious and non-religious conduct. The inconsistencies were demonstrated by the limitation placed solely on religious gatherings, which allowed no more than ten people to gather indoors for religious services. By placing a limitation on religious entities, the court found that the Governor entrusted citizens to safely perform non-religious activities indoors (such as shopping or working or selling merchandise) but did not entrust them to worship safely indoors. Id. at *9. Further, EO 138 stated that all services involving more than ten individuals must be held outdoors “unless impossible.” After EO 138 was issued, a guidance was posted to further explain that “impossible” would be “when particular religious beliefs dictate that some or all of a religious service must be held indoors and that more than ten people must be in attendance.” Id. at *4. The Governor’s counsel indicated that the sheriff or other local authority would oversee the regulation over this impossibility standard, but the court explained that this was an issue to be decided by judges applying the Constitution, not by local officials. Id. at *6. 

Having concluded that the executive orders were not neutral laws of general applicability, the court subjected the orders to strict scrutiny, which required the orders to be narrowly tailored to furthering a compelling governmental interest. While the Court conceded that the Governor had a compelling governmental interest in preventing the spread of COVID-19, the court nevertheless found that the orders were not the least restrictive means of serving the governmental interest. Id. at *9. The interest, the court suggested, could be achieved by narrower ordinances that burdened religion to a lesser degree.

Regarding the balance of equities, the court determined that since the TRO concerned the executive orders of Governor Cooper, this necessarily implicated the public interest of preventing the spread of COVID-19. But the court maintained that worshipers could look after one another and society while exercising their free exercise rights, just as they and their fellow citizens do when they participate in non-religious activities. Id. at *10. Berean Baptist Church pledged to practice social distancing guidelines, just like other essential businesses listed in the orders. Accordingly, the court held that the equities tipped in favor of granting a TRO and thereby granted a statewide injunction.

California District Court Denies Temporary Restraining Order Request from Church Hoping to Hold In-Person Services

Cross Culture Christian Center V. Newsom, No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020).

Written by: Ken Ciccoli

On March 22, 2020, California set guidelines in response to COVID-19, which deemed the online streaming of church services essential, but not in-person services. Cross Culture Christian Center continued to hold in-person services throughout the month, despite multiple notices that explained this non-essential use of the building was a public nuisance. Then, on April 5, 2020, Johnathon Duncan, pastor of the Cross Culture Christian Center, walked up to the doors of his church and found the locks had been changed. The landlord had changed them to avoid violation of a second order set forth by Joaquin County. This order explained that allowing a tenant to hold in-person services went against the county and state’s COVID-19 stay-at-home orders. In response, the church filed a complaint with the United States District Court for the Eastern District of California that alleged state and county officials had impermissibly infringed upon their First Amendment rights under the Free Exercise clause. The church sought a temporary restraining order (TRO) asking the court to enjoin enforcement of the state and county orders against them, and stated that that it would follow the CDC’s social distancing guidelines during its in-person services. The court ultimately denied the church’s request, explaining that the church was unlikely to succeed on the merits of its First Amendment claims.

The court explained that a party seeking a temporary restraining order must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm absent preliminary relief; (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. Cross Culture Christian Ctr. v. Newsom, No. 220CV00832JAMCKD, 2020 WL 2121111, at *3 (E.D. Cal. May 5, 2020). Focusing on the first factor, the court denied the church’s motion for emergency relief because the church was unlikely to succeed on the merits of its case.

The court first emphasized the expansive power afforded to government officials to address a public health crisis, which the Supreme Court famously expounded upon in Jacobson v. Massachusetts. When a state or locality exercises its police powers to enact an emergency public health measure, courts will uphold it unless it bears no real relation to public health or is a plain invasion of rights secured by fundamental law. Id. at *4 (E.D. Cal. May 5, 2020). The court determined that the California and Joaquin County’s orders were reasonably related to public health and did not invade the rights secured by fundamental law simply because the church “would have done things differently.” Id.

Next, the court analyzed whether the religious protections provided by the Free Exercise Clause would help the church succeed on the merits of its claims. The court concluded, however, that the orders are both neutral and generally applicable. “When a neutral law of general application places incidental limits on a religious exercise, the right to practice religion freely does not include liberty to expose the community to communicable disease.” Id. at *5. In sharp contrast, the church contended that the orders’ exceptions permitting secular businesses such as grocery stores and marijuana dispensaries to operate demonstrated that the orders discriminated against religion and should be subjected to strict scrutiny. The court, however, explained that this comparison was inept, and that people gathering in church services for extended periods of time was more akin to people congregating in restaurants, movie theaters, and concerts—all of which were also prohibited by state and county orders. Therefore, the court instead required the church to prove that the orders had no conceivable purpose under rational basis review. The church failed to do so, and the court subsequently denied its motion for relief.

District Court in Delaware Denies Pastor’s Request for Temporary Restraining Order

Bullock V. Carney, No. CV 20-674-CFC, 2020 WL 2813316 (D. Del. May 29, 2020), aff’d, 806 F. App’x 157 (3d Cir. 2020).

Written By: Ken Ciccoli

On May 29, 2020, Judge Connolly of the United States District court for the District of Delaware denied Pastor Dr. Christopher Alan Bullock’s request for relief by temporary restraining order (“TRO”) from Governor John Carneys’ State of Emergency Declaration. The Governor issued the declaration, on March 13, 2020, in response to the coronavirus pandemic. Since then, the declaration has been modified a total of nineteen times. The Eighteenth Modification, issued on May 18, 2020, permitted houses of worship to hold in-person services so long as attendance did not exceed ten people or 30% of the state fire code occupancy. Additionally, the modification required in-person services to follow social distancing guidelines including the “Guidelines for Safe Worship” issued by the Delaware Division of Public Health. Bullock v. Carney, No. CV 20-674-CFC, 2020 WL 2813316, at *1 (D. Del. May 29, 2020), aff’d, 806 F. App’x 157 (3d Cir. 2020). Those guidelines, also issued on May 18, placed additional restrictions on religious organizations and barred individuals sixty-five and older from attending worship services, limited services to one-a-week, and prohibited church choir during services.

On May 19, Dr. Bullock, the Founder and Pastor of Canaan Baptist Church, filed a verified complaint arguing that the emergency declaration, the modifications, and the guidelines violated the Establishment Clause and Free Exercise Clause under the First Amendment. Shortly thereafter, on May 22, he filed a TRO seeking an injunction against the Governor from enforcing the emergency declaration, modifications, and guidelines. On May 23, the Delaware Division of Public Health issued a new guidance that still mandated churches have only one in-person worship service per week, but eliminated the other restrictions listed above. Furthermore, the guidance allowed drive-in and outdoor services without any occupancy limits. However, the guidance included new restrictions such as eliminating the use of ushers to collect contributions and the holding of persons during their baptisms. 

In his decision to deny Dr. Bullock’s TRO, Judge Connolly stated that “[t]he purpose of a temporary restraining order is to preserve the status quo so that a reasoned resolution of a dispute may be had.” Id. at *3. He further explained that a return to the status quo would actually further, not lessen, the burden faced by Dr. Bullock because the Governor’s earlier declaration and modifications were more restrictive. The Court also noted that Dr. Bullock had failed to show that he would suffer irreparable harm if the TRO was not issued. Judge Connolly specifically noted that e his decision did not rule on the merits of Dr. Bullock’s claims. He concluded in that “[t]hose claims implicate one of our most treasured rights protected by the Constitution—the right to exercise freely one’s religion . . . and [his] decision [to deny a TRO] affords [him] the opportunity to give the case the considered reflection it deserves.” Id. at *5.

Nevada District Court Denies Church’s Request for Emergency Injunctive Relief

Calvary Chapel Lone Mountain v. Sisolak, No. 2:20-cv-00907-RFB-VCF, 2020 WL 3108716 (D. Nev. June 11, 2020)

Written by: Victoria Ashley Partington

On May 20, 2020, Calvary Chapel Lone Mountain filed a complaint alleging various federal and state challenges to Nevada Governor Sisolak’s emergency directives in response to the COVID-19 pandemic. Sisolak’s Emergency Directive 021 (the “Directive”) permitted certain categories of businesses and other activities to operate, subject to restrictions to limit the spread of COVID-19. Section 10 of the Directive prohibited gatherings of more than fifty people in any indoor or outdoor setting including  communities of worship, which were permitted to host in-person services with a maximum of 50 attendees if they abided by social distancing requirements. Calvary Chapel Lone Mountain v. Sisolak, No. 2:20-cv-00907-RFB-VCF, 2020 WL 3108716, at *1 (D. Nev. June 11, 2020). By contrast, the Directive had more liberal occupancy limits for certain secular businesses, including casinos, which could have indoor gatherings of people up to 50% of the building’s capacity.

Calvary Chapel argued that the differing and more favorable rules for some secular businesses violated the Free Exercise Clause because the secular businesses were being treated better than churches.  The church claimed that this manifested hostility toward religious worship and sought injunctive relief to prohibit enforcement of the Directive so the church could also operate at 50% capacity. The United States District Court for District of Nevada denied the church’s motion.

Although the court agreed that church services may be like casinos, in that both are indoors and involve a large gathering of people for an extended period, the court disagreed that casinos are treated more favorably than places of worship. In fact, casinos must not only follow restrictions under the Directive but are required to follow additional restrictions set forth by the Nevada Gaming Control Board, which include regulatory policies related to the placement of table games and slot machines, training of employees, financial operations, and other internal operations of casinos. Moreover, the court pointed out that casinos are one of the few secular businesses that are subject to specific enforcement and punishment guidelines for violating the directive. The court concluded that casinos are “subject to heightened regulation and scrutiny under the guidelines in comparison to churches, regardless of the difference in occupancy cap.” Id. at *3.

The court observed that public gatherings at church services are similar to gatherings at museums, movie theaters, nightclubs and concerts, and noted that these secular businesses are subjected to the same fifty-person cap as churches or are banned altogether under the Directive. Merely because secular businesses that are akin to church services have slightly different restrictions, the Court pointed out, does not mean that the Directive reflects “an implicit or explicit attempt to target places of worship.” Id. at *4. Furthermore, the court explained that “[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” Id. Overall, the court found that the Directive was neutral and generally applicable and therefore did not violate the Free Exercise Clause.

The court also determined that the church had no viable claims under the Fifth Amendment’s right to travel nor under the due process rights guaranteed by the Fifth and Fourteenth Amendments. The Directive was a valid use of state power in accordance with the precedent set forth by the Supreme Court. The District Court noted that in Jacobson v. Massachusetts, and more recently in South Bay, the Supreme Court made “it clear that the state has broad authority to pass emergency measures to protect public health and will not upset that authority absent clear excess of constitutional boundaries.” Id. Finally, the court dismissed the state constitutional claims with little discussion, presumably because they mirrored the federal claims which the court had already determined were unlikely to be successful. Id. at *5. As a result, Calvary Chapel’s request for preliminary injunction was denied.

Four Supreme Court Justices Dissent Against Court’s Denial of Injunctive Relief to Nevada Church

Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. ___ (2020).

Written By: Lea Solakian

Following an order issued by Nevada Governor Steve Sisolak, which placed a 50-person maximum occupancy limit on indoor worship services, Calvary Chapel Dayton Valley sought an injunction allowing it to conduct services at a 50% maximum capacity. The order permitted secular businesses such as casinos to operate at 50% maximum occupancy, but prohibited houses of worship from doing the same. Calvary Chapel wished to host services with 90 congregants, which amounted to 50% of the church’s fire-code capacity. Calvary intended to implement stringent social distancing guidelines, cut the length of its services in half, require six feet of separation between families seated in the pews, prohibit items from being passed among attendees, and leave ample time between services to sanitize the Church.

Notwithstanding the Church’s strict safety guidelines, and despite the fact that Nevada permitted casinos and other secular businesses to operate at a 50% maximum capacity, Calvary failed to obtain injunctive relief from the district court. The Ninth Circuit Court of Appeals similarly refused to grant an injunctive pending appeal as did the United States Supreme Court. Four justices dissented to the Supreme Court’s denial of the church’s application., Justice Alito wrote a dissent, which was joined by Justice Thomas and Justice Kavanaugh. Justice Gorsuch wrote a dissent for himself. Justice Kavanaugh, who joined Alito’s dissent, wrote to add further comments.

Justice Alito contended that an injunction should have been granted because Calvary Chapel is highly likely to succeed on the merits of its First Amendment claim and preventing attendance at worship services inflicts irreparable harm on the Church. He emphasized that the State had failed to explain how allowing Calvary Chapel to conduct services under the Church’s strict guidelines posed a greater risk to public health than allowing people to a gym or casino up to a building’s 50% capacity. In fact, he explained, alcohol-consuming casino patrons are more likely to engage in risk taking like removal of masks than people attending church services. He recognized that states are permitted to restrict civil liberties in response to a pandemic and “may not be able to craft precisely tailored rules” when first responding to the crisis. Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. ___ (2020) (Alito, J., dissenting). But he stressed that the leeway for states to act becomes more limited once more scientific and medical evidence becomes available and states have had the opportunity to design policies that adequately consider constitutional rights. In this instance, Governor Sisolak issued his order more than two months after initially declaring a state of emergency in response to COVID-19. Id. at 3.

Justice Alito found that the Governor’s order restricting the size of church services but not comparable secular activities “blatantly discriminates against houses of worship” and should be subject to strict scrutiny. Id. at 7. He noted that, under the 50% occupancy cap, casinos have hosted thousands of patrons engaging in activities such as playing craps and blackjack that customarily lead to minimal social distancing. Id. at 5. He was not convinced by the State’s argument that these patrons are required to wear masks and that food service at casinos is limited, especially since congregants at houses of worship are also required to wear masks and do not consume any food during services. He noted that there were even photos and videos showing casino patrons without masks while in close contact with one another. He also rejected the State’s claim that enforcing a 50% capacity rule is substantially harder than enforcing a 50-person maximum rule. He explained that most buildings that host gatherings visibly post their maximum occupancy limits and state officials could simply divide that figure in half. Id.

In this dissent, Gorsuch proclaimed that “This is a simple case.” Id. at 1 (Gorsuch, J., dissenting). He emphasized the illogic of permitting secular businesses to host hundreds of patrons while houses of worship are prohibited from admitting more than 50 congregants, despite the size of the building and the distance between congregants. He recognized that COVID-19 presented the country with unprecedented challenges, but said that did not justify favoring a casino over a church.

Justice Kavanaugh similarly objected to the State’s blatant discrimination against places of worship. He said that a state may not impose strict limits on places of worship and looser limits on casinos and bars without a persuasive justification. He said that when a state exempts some categories of activities from restrictions but not others, the state is required to place religious institutions in the favored or exempt category unless it has a compelling reason for doing otherwise.

Kavanaugh acknowledged that the state has a compelling interest in mitigating the spread of COVID-19, but said it had failed to explain why it treated churches less favorably then casinos, bars, and gyms. Id. at 8.  He conceded that states have to balance public safety against the economic hardships caused by health restrictions, but said there is absolutely no precedent that permits states to discriminate against religion merely because religious organizations do not generate economic benefits comparable to bars, gyms, and casinos. Id. Justice Kavanaugh recognized that courts should give deference to States’ “line drawing” in response to a pandemic, but that a pandemic is not a free pass for states to discriminate against religion. Id. at 10. There are certain constitutional lines that a State may not cross even in a crisis: racial discrimination, religious discrimination, and content-based suppression of speech. Id. In sum, he would grant Calvary Chapel an injunction because Nevada has discriminated against religious organizations without a sufficient justification for doing so.