As the COVID-19 (coronavirus) pandemic continues, more parties are legally challenging the lockdowns and other government actions taken to slow the virus’s spread. These parties include prison inmates, abortion clinics, erotic nightclubs, political candidates, and churches. All such parties have won some emergency relief from courts. All such parties have won some emergency relief from courts. Many other parties have lost, mostly because their activities receive no special constitutional protection.
Most religious freedom cases have been brought by churches or their parishioners. All such cases have occurred in federal courts. So far, most have turned on the US Supreme Court’s modern precedents interpreting the Free Exercise Clause of the First Amendment to the US Constitution.
Other faith-based organizations (FBOs) are filing cases as well, and court decisions in all FBO cases will affect the religious freedoms of all. To date, FBOs have lost more cases than they have won, but their results have been improving.
One key assessment in these cases has been the extent of risk posed by religious gatherings. Many stories and studies have noted outbreaks from a religious service, but these outbreaks largely occurred before society understood the dangers and health precautions were imposed. An ongoing question, often unstated, is whether houses of worship will act responsibly.
States have regulated worship services differently. As noted by a federal judge in Case #21 below, 15 states have “exempted religious gatherings from any attendance limitations during this pandemic.” They are: Arizona, Arkansas, Colorado, Florida, Georgia, Michigan, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.
In ruling for the church in Case #21, the judge said the state of North Carolina “failed to cite any peer-reviewed study showing that religious interactions in those 15 states have accelerated the spread of COVID-19 in any manner distinguishable from non-religious interactions.” He added that, “common sense suggests” that worshipers “have every incentive to behave safely and responsibly whether working indoors, shopping indoors, or worshiping indoors.”
The other 35 states have imposed a variety of limitations that range from banning all religious gatherings to allowing some, such as “drive-in” services. In many of those states, churches have sued, with mixed results. Tracking the cases is the purpose of this article.
Another key assessment in these cases is how to define religious discrimination. To what sorts of secular gatherings should religious gatherings be compared? Solely to school, theater, and other assemblies? Or to any secular activities that gather people in close quarters? And what kind of intent must be proven? Religious bigotry? Or merely the intent to treat differently?
Most courts have found worship services to be quite unlike, and riskier, than secular activities offered for comparison, such as gatherings for shopping, traveling, or business meetings. But the US Department of Justice has been intervening on behalf of FBOs, which may alter outcomes.
FBOs have not always helped their own cause. In some of the cases discussed below, judges sharply criticized the public-safety behavior and/or the litigation tactics of the FBO at issue.
FBO losses in court have practical effects: members and mission suffer as well as the communities they serve. Other faith-based groups and individuals also suffer from the results of adverse court rulings, since they establish precedents that some courts must follow and other courts may find persuasive.
Not all precedent is equal. Two church wins have come from a higher court: the US Court of Appeals for the Sixth Circuit. As these are the only appellate decisions issued so far, they are the highest (and best) precedent to date. They are binding precedent for all lower courts within its jurisdiction (Michigan, Ohio, Kentucky, and Tennessee) and can be persuasive precedent elsewhere as cases with similar facts make their way through the legal system nationwide.
With all of that in mind, it’s important for church leaders and their attorneys to monitor these developments closely. It’s critical to understand how cases in their jurisdictions get decided. Strategically, it’s also helpful to recognize which arguments have prevailed and which ones have failed if church leaders and their attorneys are contemplating filing their own legal challenges.
This article—on a frequently updated, ongoing basis—will summarize these recent pandemic-related precedents in chronological order. The summaries will aim to provide practical and legal guidance to help church leaders and attorneys steward their resources well.
Case #1: On Fire Christian Center v. Fischer (W.D.Ky. April 11, 2020)
While preparing for Easter, On Fire Christian Center faced prosecution for holding services, even in-car “drive-in” services in its parking lot. It sought a temporary restraining order (TRO) from a federal district court. The case landed with US District Judge Justin Walker, who was recently nominated for a seat on the US Court of Appeals for the DC Circuit.
The church said it was being treated unfairly by Louisville Mayor Greg Fischer. The mayor’s restrictions allowed many secular establishments, including liquor stores, to host unlimited cars in their parking lots and offer drive-through services, as well as in-store services for patrons. “We are not allowing churches to gather either in person or in any kind of drive-through capacity,” the mayor said publicly a few days before Easter.
In his decision, Judge Walker acknowledged the COVID-19 crisis and prior US Supreme Court precedent instructing courts to give great deference to public officials during public emergencies. At the same time, he emphasized “religious liberty’s importance to our nation’s story, identity, and Constitution.” On balance, he concluded that “Louisville may not ban its citizens from worshiping—or, in the relative safety of their cars, from worshiping together.”
The key for Walker was the differential treatment of church and secular activities. According to the city, “essential activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping.” Yet, the church was prohibited from similar activities, leading Walker to observe, “if beer is essential, so is Easter.” Walker ruled that the city’s differential treatment was “violating the Free Exercise Clause beyond all question.” This was so, he said, regardless of the city’s motives:
When Louisville prohibits religious activity while permitting non-religious activities, its choice must undergo the most rigorous of scrutiny. . . . Nothing in this Opinion should be read to impugn the Mayor’s motives or his faith. . . . But when considering the rights guaranteed by the Free Exercise Clause, it doesn’t matter that the government burdening the religious practices of others consists entirely of the pure-hearted, if the law it enacts in fact singles out a religious practice for special burdens.
This differential treatment also violated the Kentucky state Religious Freedom Restoration Act (RFRA), Walker ruled. Adopted in 2013, this RFRA says local and state laws and government-related activities are prohibited from substantially burdening a sincerely held religious belief “unless the government proves by clear and convincing evidence that it has a compelling governmental interest . . . and has used the least restrictive means to further that interest.” Finding the RFRA analysis to be comparable to his “strict scrutiny analysis in the constitutional context,” Walker determined the city’s actions also violated the state’s RFRA.
Author’s Note: Since a 1997 US Supreme Court decision, the federal RFRA has applied only to the federal government. Since then, 21 states have enacted state RFRAs to limit the actions of their state and local governments: Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsvlvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. Learn more about the laws of these states, plus relevant religious liberty court decisions in other states, through this new 50-state survey of religious freedom laws from Church Law & Tax.
Case #2: Davis v. Berke (E.D.Tenn. April 17, 2020)
Judge Walker’s On Fire decision was a big win for churches seeking First Amendment protections from government directives. But outcomes in similar cases located elsewhere in the country began to differ the following week, starting in Tennessee.
On April 17, 2020, US District Judge Curtis Collier denied a TRO to a parishioner in Chattanooga who claimed Mayor Andrew Berke’s order prohibited him “from attending worship services” at his church and “from visiting a drive-in church service” at another church. This parishioner brought his case pro se (without a lawyer), and Judge Collier dismissed it for failure to follow basic procedural requirements.
In his opinion, Collier only addressed Walker’s decision in a footnote:
Without sufficient, specific facts as to the dispute before this Court, the Court cannot determine whether the same result is warranted here as was reached in On Fire. In addition, as discussed above, Plaintiff has not satisfied the procedural requirements that allow the issuance of the type of ex parte temporary restraining order the On Fire court issued.
Case #3: Legacy Church v. Kunkel (D.N.M. April 17, 2020)
On April 17, 2020, US District Judge James Browning denied a TRO to Legacy Church, a “mega church” in New Mexico. The church challenged an order by state health official Kathyleen Kunkel that prohibited “gathering five people or more in a connected space.” The church argued that its big facility allowed it to easily host the few parishioners seeking in-person worship while also strictly complying with all health requirements. If the number of in-person parishioners increased, the church committed “to turn parishioners away and direct them to view church services online.”
Under recent Supreme Court precedent, the Free Exercise Clause permits government actions that burden religion so long as they are religion-neutral and generally applicable (i.e., nondiscriminatory). Thus, to prevail, a religious claimant usually must prove discrimination. Judge Browning found no such discrimination. But his inquiry, unlike Judge Walker’s in On Fire, required more than differential treatment. Browning also examined motive and found “no evidence of animus against Christianity in particular or against religion in general.”
Judge Browning considered On Fire. He wasn’t required to follow it since it came from a peer-level court (as well as a faraway jurisdiction). While he could find On Fire persuasive for purposes of his decision, Browning distinguished it from this case because On Fire involved drive-in services whereas this case involved in-person worship.
Case #4: Maryville Baptist Church v. Beshear (W.D.Ky. April 18, 2020)
On April 18, 2020, US District Judge David Hale, a peer of Judge Walker in the same judicial district, considered a case similar to On Fire. In this case, Maryville Baptist challenged Governor Andrew Beshear’s ban on “mass gatherings” that are “faith-based” and sought a TRO that would allow both drive-in and in-person services so long as the church met all health requirements applicable to secular gatherings.
Judge Hale ruled against the church in a short opinion with very little legal analysis. Though he cited his colleague’s On Fire decision, he provided no discussion of it, despite the similarities. However, Judge Hale was reversed on May 2, 2020, by the US Court of Appeals for the Sixth Circuit in a church-friendly decision (see Case #9 below).
Case #5: First Baptist Church v. Kelly (D.Kan. April 18, 2020)
On April 18, 2020, US District Judge John Broomes ruled in favor of two Baptist churches in Kansas after Governor Laura Kelly rejected their requests “to hold in-person worship services provided the congregants follow rigorous social-distancing and safety protocols applicable to similar secular facilities.”
In granting the TRO, Judge Broomes incorporated an extensive list of safety protocols offered by the churches. The list is a useful example of steps churches may want to incorporate in future reopening plans. While Judge Broomes did not cite On Fire, he ruled consistently with it.
“[Kelly’s orders] operate as a wholesale prohibition against assembling for religious services anywhere in the state by more than ten congregants,” he wrote. Thus, the “orders will likely impact the majority of churches and religious groups in Kansas [and thus] sweep far beyond the incidental effect on religious activity excused” by Supreme Court precedent. The orders “expressly target religious gatherings on a broad scale and are, therefore, not facially neutral,” he added. They also were not generally applicable due to exceptions for a “multitude of activities that appear comparable” to church services “in terms of health risks.”
Unlike Judge Browning in Legacy Church, Judge Broomes did not require evidence of animosity toward religion or churches to reach his conclusion. To the contrary, he presumed the best motives of Governor Kelly as she “has immense and sobering responsibility to act quickly to protect the lives of Kansans from a deadly epidemic.” This tone was similar to Judge Walker in On Fire.
Also like Judge Walker, Broomes focused his inquiry on the ways the state’s orders treated religion differently, which he concluded was impermissible. He stated:
[Kelly] has not argued that mass gatherings at churches pose unique health risks that do not arise in mass gatherings at airports, offices, and production facilities. Yet the exemption for religious activities has been eliminated while it remains for a multitude of activities that appear comparable in terms of health risks. . . . [T]he most reasonable inference from this disparate treatment is that … religious activity was targeted for stricter treatment due to the nature of the activity involved, rather than because such gatherings pose unique health risks that mass gatherings at commercial and other facilities do not, or because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols (emphasis added).
Thus, Broomes found the orders lacking both religious neutrality and general applicability. Both shortcomings amounted to disparate treatment or other religious discrimination. He wrote:
Plaintiffs [the churches] can likely show that the broad prohibition against in-person religious services of more than ten congregants is not narrowly tailored to achieve the stated public health goals where the comparable secular gatherings are subjected to much less restrictive conditions. . . . Plaintiffs have shown [moreover], that they are willing to abide by protocols that have been determined by the Governor to be adequate to protect the lives of Kansans in the context of other mass gatherings. . . . [A]llowing Plaintiffs to gather for worship with the safety protocols similar to those applicable to other essential function mass gatherings is consistent with the interest in protecting public health.
Case #6: Gish v. Newsom (C.D.Cal. April 23, 2020)
On April 23, 2020, US District Judge Jesus Bernal denied a TRO to California parishioners seeking relief from three orders—including one from Governor Gavin Newsom and two from local officials—that prevented the parishioners from engaging “in religious services, practices, or activities at which the [CDC’s] social distancing guidelines are followed.’”
The state order by Newsom imposed a stay-at-home requirement. “The Riverside Order prohibits ‘[a]ll public or private gatherings . . . including, but not limited to an auditorium, . . . church, . . . or any other indoor or outdoor space used for any non-essential purpose including, but not limited to . . . church . . . .’” The San Bernardino Order “allow[s] faith based services that are provided through streaming or other technology, while individuals remain in their homes, but does not allow individuals to leave their home for . . . drive-up services . . . .”
Judge Bernal said the orders were not subject to traditional judicial scrutiny due to the public emergency, but would survive such scrutiny in any event:
Because the Orders survive the minimal scrutiny required where executive action [is] taken in response to an emergency, the Court need not determine whether the Orders likewise survive traditional constitutional analysis. But they do: the [TRO] must also be denied because the Orders likely do not impermissibly infringe on Plaintiffs’ constitutional rights even when applying the traditional constitutional scrutiny.
Judge Bernal decided the orders were religion-neutral, both on their face and as applied to faith-based gatherings, as well as generally applicable. Unlike Judge Walker in On Fire (Case #1 above) and Judge Broomes in First Baptist (Case #5), Judge Bernal was not persuaded by differential treatment of religious activity, emphasizing the complete lack of “evidence that the Orders target religious conduct over secular conduct.” Finding no discrimination, he applied minimal constitutional scrutiny, which only requires a government to have a “rational basis” for its actions (a modest judicial standard that is almost always met).
Judge Bernal never warmed to the parishioner’s arguments. “Plaintiffs argue that the Orders are underinclusive of secular activities that may also contribute to the spread of COVID-19 because they allow grocery stores, fast food restaurants, and marijuana dispensaries to remain open. But these are all essential services . . . .” What seemed to drive his decision was his view that “faith-based gatherings” contributed unnecessarily to health risks:
If the state applies the same rules to in-person religious gatherings as it does to grocery stores, people will get sick and die from attending religious gatherings just as they are dying from working in grocery stores. Moreover, because the risk of transmission increases with every out-of-home contact, it is necessary to suspend non-essential activities so that essential functions can be less dangerous.
Finally, it is worth noting how precedents in one constitutional arena can affect another. Like other judges in these church cases, Judge Bernal cited In re Abbott, where the US Court of Appeals for the Fifth Circuit (covering Texas, Louisiana, and Mississippi) said courts owe great deference to governments battling the pandemic. Specifically, he cited the majority opinion of a three-judge panel that said the pandemic response of Texas, including its efforts to reserve masks or other medical equipment for the response, justified a limitation on abortion procedures. The dissenting judge on the panel disagreed and cited On Fire (Case #1) for the proposition that the pandemic should not be used as an excuse to harm constitutional rights (such as abortion).
Case #7: First Pentecostal Church v. City of Holly Springs (N.D.Miss. April 24, 2020)
On April 24, 2020, US District Judge Michael Mills avoided ruling on a TRO sought by the church and instead urged the parties to find a compromise. He contrasted this case with another church case on his docket, in which a city repealed its restrictive order before the court ruled on it. “The unreasonable (and likely unconstitutional) nature of [the] original order was tacitly acknowledged by the City of Greenville, which has since replaced it with one which specifically allows drive-in services, so long as the vehicles’ windows are raised.”
Judge Mills tried to frame the overall quandary. “[T]he Church insists that its members practice social distancing during indoor church services, but this strikes this court as being a rather hollow guarantee, given the inherent difficulties involved in policing meetings behind closed doors and the inherent medical uncertainties [involved].” At the same time:
Free Exercise of religion is one of the most important [constitutional guarantees] and, without question, it grants the Church in this case the right to assert certain rights which, say, a barber shop would have no right to assert. That being the case, this court agrees with the Church that the City of Holly Springs made a rather poor decision to draft an ordinance which simply grouped churches together with other non-essential businesses such as barber shops, restaurants and liquor stores . . . .
Noting the rise of legal challenges by churches, Judge Mills offered some general advice. In ordinary times, courts usually refrain from offering such advisory opinions since the US Constitution only empowers them to decide live “cases and controversies” that require actual conflict resolution. But these are not ordinary times. Churches can benefit from the advice offered by Judge Mills in this case just as they can benefit from the extensive list of church safety protocols incorporated into Judge Broomes’ TRO in First Baptist (Case #5 above).
Case #8: Lighthouse Fellowship Church v. Northam (E.D.Va. May 1, 2020)
On May 1, 2020, US District Judge Arenda Wright Allen denied a TRO to a church seeking relief from a ten-person limit on social gatherings ordered by Virginia Governor Ralph Northam. In an unusual move two days after the court’s decision, the US Department of Justice (DOJ) filed a Statement of Interest on behalf of the church. DOJ’s Statement is helpful here, as it provides more background from the church’s complaint than does Judge Allen’s 33-page opinion.
Per the DOJ, Lighthouse Fellowship is a small congregation focused on “socioeconomically disadvantaged” persons and others “trying to put their lives together, who do not have the resources to watch worship services over the Internet.” On April 5, 2020, Pastor “Kevin Wilson, was issued a criminal citation and summons because of [a] sixteen-person worship service [even though] these 16 people were separated by more than six feet in the 225-seat sanctuary.”
In a very detailed opinion, Judge Allen rejected all of the church’s legal claims, including those based on the First Amendment’s Free Exercise Clause, Establishment Clause, Free Speech Clause, and Free Assembly Clause, as well as a claim based on Virginia’s religious freedom statute (Virginia RFRA). A key to Allen’s analysis of all the constitutional claims was her consideration of the “Governor’s motives in drafting these Orders” and the “strong inference at this stage that the Orders were not drafted with any discriminatory intent or religious animosity.”
Allen never warmed to the church’s asserted need for gatherings of more than ten people. “The Court agrees that practicing one’s religion and obtaining spiritual guidance are essential for some people. Plaintiff is capable of practicing its religion in small-group form, through methods other than physical gathering, and in safe combinations of these options.”
Allen also rejected the claim under the Virginia RFRA, among the friendliest of the 21 state RFRAs nationwide. With a strict scrutiny test similar to Kentucky’s (Case #1), Virginia’s prohibits a Virginia government from “substantially burdening a person’s free exercise of religion,” unless it proves by “clear and convincing evidence” that the “application of the burden to the person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that [interest].”
It also defines exercise of religion broadly by reference to the US and Virginia Constitutions and the Virginia religious freedom act authored by Thomas Jefferson, and defines substantial burden broadly as any government action that “inhibit[s] or curtail[s] religiously motivated practice.”
On such matters of state law, federal judges are required to consult relevant state court precedent. As relevant here, a 1985 Virginia Supreme Court decision states: “The constitutional guarantees of religious freedom have no deeper roots than in Virginia, where they originated, and nowhere have they been more scrupulously observed.” Judge Allen did not cite this decision.
Despite such religion-friendly state law, Judge Allen found no substantial burden to trigger the statute’s strict scrutiny requirement:
Under the relevant statute, substantially burden means to inhibit or curtail religiously motivated practice. . . . [T]he statute is not so broad that any incidental burden on a person or group’s ability to engage in a religiously motivated practice, no matter how small, is a violation of the statute. . . . A governmental entity’s action does not substantially burden religious activity when it merely has an incidental effect that makes it more difficult to practice the religion (citations and internal punctuation omitted).
Overall, Judge Allen concluded as follows:
The alleged harms to Plaintiff include the temporary inability to host in-person religious worship services in groups larger than ten. Assuming arguendo that this restriction raises constitutional concerns, those concerns do not outweigh the severe harm [of not enforcing the governor’s] Orders. . . . Even if the public has a profound interest in people worshipping together . . . in a manner consistent with their conscience, the public has a greater interest in saving human life (citations and internal punctuation omitted).
On May 3, 2020, DOJ filed its statement supporting the church’s request for an injunction pending appeal—to put the Orders on hold until the US Court of Appeals for the Fourth Circuit (covering Virginia, West Virginia, Maryland, and North and South Carolina) has time to rule. DOJ argued that Judge Allen misconstrued the law, based partly on the Sixth Circuit’s decision issued on May 2 (covered in a forthcoming update). On behalf of the United States government, DOJ concluded:
[T]he church has set forth a strong case that the Orders, by exempting other activities permitting similar opportunities for in-person gatherings of more than ten individuals, while at the same time prohibiting churches from gathering in groups of more than ten—even with social distancing measures and other precautions—has impermissibly interfered with the church’s free exercise of religion. Unless the Commonwealth can prove that its disparate treatment of religious gatherings is justified by a compelling reason and is pursued through the least restrictive means, this disparate treatment violates the Free Exercise Clause, and the Orders may not be enforced against the church.
Note: The strict scrutiny applied by courts in these cases is similar whether a claim is made under a federal or state constitution or RFRA. The question is whether the claimant can trigger the strict scrutiny. For federal constitutional claims, a claimant must show some form of discrimination. For claims under nearly every RFRA, a claimant must show a substantial burden on its religious exercise. If strict scrutiny is triggered, the court will require the government to prove a compelling interest achieved by least restrictive means (narrow tailoring).
Case #9: Maryville Baptist Church v. Beshear (6th Cir. May 2, 2020)
Editor’s Note: Due to this decision’s precedential value, it merits longer treatment here. Doing so will help set up explanations for nearly all remaining cases, including this panel’s later decision in this same case. For all excerpts below, citations are omitted for readability.
On May 2, 2020, the US Court of Appeals for the Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee) issued the first appellate decision in cases by churches challenging state directives. It reversed the decision of District Judge David Hale in Case #4 and granted the church an injunction until the court could fully decide the appeal.
The basic facts were noted in Case #4. Maryville Baptist challenged Governor Andy Beshear’s ban on mass gatherings (including church services) and sought a TRO that would allow both drive-in and in-person services so long as the church met all health requirements applicable to secular gatherings. The church made claims under the US Constitution and the Kentucky RFRA. The Kentucky Attorney General supported the church.
Judge Hale rejected all claims and denied the TRO. The church immediately appealed.
A unanimous three-judge panel of the Sixth Circuit reversed, determining the church “is likely to succeed on its state and federal claims . . . .”
First, the court noted the ban evidently applied to all social gatherings, regardless of size, and it applied to all religious gatherings, whether drive-in or in-person. It also described what the church and its congregants experienced on Easter Sunday when state troopers came to the church, informed attendees they were violating criminal law, and recorded all their license plates “whether they had participated in a drive-in or in-person service.”
Second, analyzing the RFRA claim first, the court found the state’s mandate imposed a substantial burden. After noting that the Kentucky RFRA parallels state and federal RFRAs, all of which impose strict scrutiny “on laws that burden sincerely motivated religious practices,” the court ruled that the orders “prohibiting religious gatherings, enforced by police officers . . . amount to a significant burden on worship gatherings.”
Third, after finding a compelling interest exists in protecting public health, the court explained that the interest was not pursued with the least restrictive means required by strict scrutiny:
The orders permit uninterrupted functioning of typical office environments, which presumably includes business meetings. How are in-person meetings with social distancing any different from drive-in church services with social distancing? Kentucky permits the meetings and bans the services, even though the open-air services would seem to present a lower health risk. The orders likewise permit parking in parking lots with no limit on the number of cars or the length of time they are there so long as they are not listening to a church service. On the same Easter Sunday [that congregants allegedly] were violating criminal laws by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile from the church. The orders permit big-lot parking for secular purposes, just not for religious purposes. All in all, the Governor did not narrowly tailor the order’s impact on religious exercise.
Fourth, the court ruled the “Governor’s orders also likely prohibit the free exercise of religion in violation of the [US Constitution].” The court summarized the rule as follows: “[A] generally applicable law that incidentally burdens religious practices usually will be upheld [but] a law that discriminates against religious practices usually will be invalidated unless the law is justified by a compelling interest and is narrowly tailored to advance that interest.”
Fifth, observing that “[d]iscriminatory laws come in many forms,” the court said: “As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law [and the more likely it will be] the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny.”
Sixth, the court analyzed the orders to determine whether they were generally applicable and thus nondiscriminatory. The court noted:
The Governor’s orders have several potential hallmarks of discrimination. One is that they prohibit faith-based mass gatherings by name. But this does not suffice by itself to show that the Governor singled out faith groups for disparate treatment. . . . The real question goes to exceptions. . . . The orders allow life-sustaining operations and don’t include worship services in that definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for life-sustaining businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.
The court emphasized that it didn’t “doubt the Governor’s sincerity in trying to do his level best to lessen the spread of the virus [and] protect the . . . citizens.” But that was beside the point, since “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.”
The court addressed in detail the key factors for general applicability (nondiscrimination) that have been decisive—one way or the other—in nearly all of these church cases nationwide.
Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew [aisle]? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? The [state] has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.
The court continued:
Sure, the Church might use Zoom services or the like [but] who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when two or three gather in my Name. Matthew 18:20; see also On Fire Christian [Case #1 above]. As individuals, we have some sympathy for [Ohio] Governor DeWine’s approach—to allow places of worship in Ohio to hold services but then to admonish them all (we assume) that it’s not Christian to hold in-person services during a pandemic. But this is not about sympathy. And it’s exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it.
The court concluded its discussion of general applicability as follows:
The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. Are they not often the same people, going to work on one day and attending worship on another? . . . The Governor [indicates the reason] for these groups of people to be in the same area—intentional worship—distinguishes them from groups of people in a parking lot or a retail store or an airport or some other place where the orders allow many people to be. We doubt that the reason a group of people go to one place has anything to do with it. Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there. . . . [Why] permit people who practice social distancing and good hygiene in one place but not another? If the problem is numbers, and risks that grow with greater numbers, then there is a straightforward remedy: limit the number of people who can attend a service at one time.
Seventh, the court hesitated to order the state to permit in-person services:
The balance is more difficult when it comes to in-person services [and] we are inclined not to extend the injunction to in-person services at this point. . . . The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom. But it’s not always easy to decide what is Caesar’s and what is God’s—and that’s assuredly true in the context of a pandemic.
Eighth, the court issued a narrow injunction restraining any Kentucky officials from “prohibiting drive-in services at the Maryville Baptist Church” as its appeal continues.
Finally, there are three additional points worth noting:
- The court “designated its decision for publication,” meaning it intends the decision to be fully precedential. Thus, to the extent its rationale fits the facts of similar cases, it will bind all lower courts in Michigan, Ohio, Kentucky, and Tennessee; it will bind the Sixth Circuit itself unless the full court (all 16 active judges) decide to overrule it; and its logic will be considered by courts nationwide.
- This decision contributed to the US Department of Justice’s decision to intervene in church cases elsewhere (see Case #8), apparently nationwide, to apply the full weight of the US Government in support of churches.
- The court here will rule on in-person worship services in its later decision (see Case #16 below).
Case #10: Cassell v. Snyders (N.D.Ill. May 3, 2020)
On May 3, 2020, US District Judge John Lee denied a TRO to Pastor Stephen Cassell of the Beloved Church, who sought relief from stay-at-home orders issued by Illinois Governor J.B. Pritzker, and enforced by Sheriff David Snyders, that forced the church “to move [its] services online.” After this lawsuit was filed, Pritzker “issued a new order, recognizing the free exercise of religion as an essential activity [and saying] worshippers may engage in the free exercise of religion so long as they comply with Social Distancing Requirements and refrain from gatherings of more than ten people.”
Judge Lee considered the Sixth Circuit’s decision in Maryville Baptist (Case #9), though it was not binding in Illinois. But he distinguished it in two ways. First, unlike Kentucky in Maryville Baptist, which prohibited “both drive-in and in-person worship services,” Illinois now allowed drive-in services. Second, unlike Kentucky, which apparently prohibited all in-person services, Illinois permitted religious gatherings of up to ten people.
In rejecting the constitutional claim, Judge Lee quoted from the Sixth Circuit’s decision: “If the problem is numbers, and risks that grow with greater numbers, then there is a straightforward remedy: limit the number of people who can attend a service at one time.”
Judge Lee also said the plaintiffs’ state RFRA claim was unlikely to prevail. After “assuming” a substantial burden on the church, triggering strict scrutiny, he cited the church’s size, configuration, and practical limitations in finding that no less restrictive means were available to the governor. “While permitting the Beloved Church to hold in-person services with its full congregation might be less [restrictive], it would not advance the government’s interest in curtailing COVID-19 to the same degree as the ten-person limit.” Thus, he concluded “that no equally effective but less restrictive alternatives are available under these circumstances.”
Case #11: Cross-Culture Christian Ctr. v. Newsom (E.D.Cal. May 4, 2020)
On May 4, 2020, US District Judge John Mendez denied a TRO to a California church seeking relief from stay-at-home orders of Governor Gavin Newsom and local authorities. These orders prohibited “all non-essential gatherings.” Since Cross-Culture Christian Center “continued to hold in-person services” in the building of Bethel Open Bible Church, local authorities “posted a notice on the building [that] non-essential use of the facility was a public nuisance” and issued an order prohibiting in-person services, noting any violation was “punishable by fine and/or imprisonment.” However, the order said “Bethel Open Bible Church could . . . continue to operate its child-care facility ‘consistent with the order of the State Public Health Officer.’”
This case focused on constitutional claims since California has no state RFRA. Judge Mendez noted some church cases nationwide, including the church-friendly decision in On Fire (Case #1) but not those of First Baptist (Case #5) or Maryville Baptist (Case #9). Mendez still cited and relied upon Judge Hale’s decision in Maryville Baptist (Case #4), even though the Sixth Circuit unanimously reversed Judge Hale on May 2, 2020 (Case #9).
Contrary to the rationale in Case #9 and other precedents favoring churches nationwide, Judge Mendez cited and searched for “impermissible animus toward religion” to determine if the orders were discriminatory. But a bigger blow to the church here was the reliance on Judge Hale’s invalid decision, which Mendez quoted liberally as follows:
“[I]ndividuals enter these stores at various times to purchase various items; they move around the store individually . . . and they leave when they have achieved their purpose.” In-person church services, on the other hand, are “by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose.” By Plaintiffs’ own admission, they seek to assemble, in part, for the sake of assembling. . . . Consequently, “a more apt comparison . . . is a restaurant[,] entertainment venue . . . movie, concert, or sporting event” (citations omitted).
Judge Mendez likely was not aware of the Sixth Circuit’s reversal of Judge Hale’s decision. While a Sixth Circuit decision is not binding on a California judge, it’s still a fully precedential decision of a federal appeals court and Judge Mendez would be expected to give it careful consideration and either distinguish it or follow it. In any event, when a lower court decision is reversed, it is overruled and no longer “citable” by judges without noting that crucial fact.
Case #12: Roberts v. Neace (E.D.Ky. May 4, 2020)
On May 4, 2020, in a case related to Cases #4 and #9, but arising in Kentucky’s Eastern District, US District Judge William Bertelsman denied a TRO to Maryville Baptist parishioners against County Attorney Robert Neace. Two parishioners alleged that “the ban on mass gatherings as applied to in-person church attendance” violated their constitutional “right to freedom of religion,” but evidently did not assert a claim under the Kentucky RFRA. One parishioner also alleged that the “restrictions on out-of-state travel” that prevent “him from travelling to Ohio and Indiana for a variety of personal reasons” violated his constitutional right to travel.
As to the federal constitutional claims, Judge Bertelsman ruled in favor of the right to travel, preventing enforcement of the out-of-state travel ban. But he ruled against the right to religious freedom, framing the issue as follows:
Does the mass gathering ban have the effect of preventing plaintiffs who comply with it from attending in-person church services? Yes. Does the ban do so because the gatherings are faith-based? No.
Similar to Judge Mendez in Case #11, Judge Bertelsman relied on Judge Hale’s later-reversed decision in Maryville Baptist (Case #4). Judge Bertelsman noted that Judge Hale had been “overruled” by the Sixth Circuit (Case #9), but only “in part,” quoting the Sixth Circuit’s ruling that it was “inclined not to extend the injunction to in-person services at this point.” As a result, Bertelsman ruled: “Had the [Sixth Circuit] felt that such a broader injunction was warranted, it was within its power to so order. [I thus do] not find that opinion to control the outcome here.” (This ruling was reversed by the Sixth Circuit on May 9, 2020—see Case #16 below.)
While the state RFRA was not asserted in this case, Judge Bertelsman went out of his way to address it. He said he agreed with Judge Hale’s RFRA analysis, which indicated the claims here would fail even under the “more demanding compelling interest test” of Kentucky’s RFRA.
Author’s Note: Though the judge indicated his view of a RFRA claim, he did so on a field tilted sharply against it. Since it was not argued, he had only Judge Hale’s view and no counterview. It’s important for parties to assert and fully argue all winnable claims, which, in religious freedom cases, usually means a RFRA.
Case #13: Tabernacle Baptist Church v. Beshear (E.D.Ky. May 8, 2020)
On May 8, 2020, US District Judge Gregory Van Tatenhove granted a TRO to a church for in-person services. Citing his Kentucky colleagues in On Fire (Case #1), Maryville Baptist (Case #4), and Roberts (Case #12), he said district court decisions typically are not binding precedent, even on “other judges within the same district,” and he conducted his own analysis.
Judge Van Tatenhove framed the case in broad terms:
Does [our Constitution] mean something different because society is desperate for a cure or prescription? Simply put, that is the question presented here. [The church] wants to gather for corporate worship. They want to freely exercise their deeply held religious belief about what it means to be a faithful Christian. For them, it is essential [but the governor] has put a stop to that. He can do that, but he must have a compelling reason [and] despite an honest motive, it does not appear . . . that reason exists.
But his legal analysis was brief. He noted that, while the Sixth Circuit had left open the issue of in-person services in Maryville Baptist (Case #9), it had clearly suggested what was coming. Regardless, the Sixth Circuit’s analysis of the neutrality and general applicability required by the Free Exercise Clause was binding precedent, in the judge’s view:
The restrictions [the] Sixth Circuit criticized as ‘inexplicably applied to one group and exempted from another’ are the same restrictions Tabernacle challenges today. And, as the Sixth Circuit recognized, ‘many of the serial exemptions for secular activities pose comparable public health risks to worship services.’ The prohibition on mass gatherings is not narrowly tailored as required . . . . There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection (citations omitted).
In fact, even if “viewed through the state-friendly lens” of US Supreme Court precedent on public emergencies, the judge said Kentucky’s current “prohibition on religious services [was] ‘beyond what was reasonably required for the safety of the public.’” Having accepted the church’s Free Exercise claim, he declined to address the state RFRA and other claims.
Case #14: Maryville Baptist Church v. Beshear (W.D.Ky. May 8, 2020)
On May 8, 2020, the same day Judge Van Tatenhove ruled in favor of in-person services (Case #13), his Kentucky colleague Judge David Hale did the same and for the same reason: the result was required by the Sixth Circuit (Case #9). In that case, the Sixth Circuit had reversed Judge Hale’s April 18 decision (Case #4) as to drive-in services but remanded for Hale to reconsider as to in-person services. The Sixth Circuit’s rationale left Judge Hale little wiggle room.
First, Judge Hale upheld the church’s RFRA claim, since the governor did not “present any evidence or even argument that there was no other, less restrictive, way to achieve” his goals. Alternatively, he upheld the church’s constitutional claim. “Unlike this Court, the Sixth Circuit read the mass-gatherings ban as discriminatory and thus subject to strict scrutiny [and as already] explained above, the Governor has offered little to show that the orders were narrowly tailored.”
Judge Hale lamented the difficulty of conducting proper legal analysis on thin facts. “The parties repeatedly denied any need for discovery in this matter. Nor did either side seek an evidentiary hearing or oral argument . . . . The stipulation [of facts provided by the parties] is of minimal value. As a result, the factual basis for the analysis [herein] is severely limited.”
Case #15: Calvary Chapel v. Mills (D.Maine May 9, 2020)
On May 9, 2020, US District Judge Nancy Torresen denied a TRO challenge to the orders of Maine Governor Janet Mills. In Maine, churches “remain free to conduct drive-in services, online programs, and in-person assemblies of up to ten people.” Since Maine has no RFRA, this case turned on the Free Exercise Clause. But Judge Torresen also rejected all other claims.
At the outset, Judge Torresen indicated her intent to follow the “majority of courts that have considered similar executive orders in other states.” Those courts, she said, “concluded that a state does not violate the Free Exercise Clause when it limits in-person religious services to ten people, at least as long as the state permits drive-in services.”
Judge Torresen first applied the state-friendly lens of US Supreme Court precedent on public crises. After citing most of the state-friendly decisions discussed above, including Cases #3, #6, #8, #10, and #11, she said “Maine’s Gathering Orders are likely to survive this test too.” She also upheld the orders under modern Free Exercise precedents, as follows.
Regarding neutrality, Judge Torresen noted that a pattern of animosity can prove discrimination. But she focused mostly on comparables (comps) and found church services quite distinct:
In other parts of the country, houses of worship have been linked to the spread of COVID-19. Gatherings in houses of worship present a greater risk to the public health than shopping at a grocery store or other retail outlet. Shoppers, particularly in the current environment, enter a store, gather the items they need as quickly as possible, check out, and promptly leave. . . . Several other courts have distinguished churches from places where individuals shop . . . . (citations and internal punctuation omitted).
Regarding general applicability, Judge Torresen disregarded exemptions for large gatherings at “businesses and other non-religious entities.” She did so for the same reason she rejected comps for neutrality purposes: “these exempted entities do not foster the same type of assembly as the entities—both religious and secular—that are subject to the Gathering Orders [such as schools,] movie theaters, concert halls, sports venues, synagogues, mosques, and churches.”
Thus, she ruled the orders imposed burdens “equally on all types of conduct that are likely to spread COVID-19.” She did not acknowledge that houses of worship enjoy religious freedom protection under the First Amendment that theaters, concert halls, and sport venues do not.
She addressed the church-friendly Kentucky cases in a footnote. There, she distinguished—and thus rejected—Cases #1 and #9 as focused on “drive-in” services, and Cases #13 and #14 as involving state orders “different” from the order “I have before me today,” since Kentucky’s orders banned all religious gatherings. (Maine’s had the same effect, per Calvary Chapel’s May 13 brief.) She did not discuss the religion-friendly analysis of the Kentucky cases or others (e.g., Case #5), which, among other things, compared worship to secular gatherings more broadly.
Case #16: Roberts v. Neace (6th Cir. May 9, 2020)
On May 9, 2020, US Court of Appeals for the Sixth Circuit issued its second decision, after first consolidating on appeal the Kentucky district court decisions in Cases #4, #12, and #14. The Sixth Circuit is still the only appeals court to have ruled in these cases. Given the court’s stature, both of its unanimous, published decisions (Cases #9 and #16) are binding in Michigan, Ohio, Kentucky, and Tennessee and available to persuade everywhere else.
In the Sixth Circuit’s first decision (Case #9), it granted an injunction pending appeal as to the drive-in services but declined to “to extend the injunction to in-person services at [that]point.” In this second decision, it finished the job. Due to the lengthy treatment of Case #9 above, and its substantial overlap with this Case #16, treatment here can be brief.
In this second decision, the court omitted any discussion of the state RFRA and focused solely on the Free Exercise Clause, which turns on discrimination. Observing that “[f]aith-based discrimination can come in many forms,” the court focused on comparison of church activities to “the four pages of exceptions in the orders, and the kinds of group activities allowed.” Citing other circuit courts, it stated: “We have plenty of company in ruling that at some point a proliferation of unexplained exceptions turns a generally applicable law into a discriminatory one.” For the court’s comparative analysis of the exceptions, see Case #9 above.
Significantly, the court articulated the religious discrimination rule as follows:
Nor does it make a difference that faith-based bigotry did not motivate the orders. The constitutional benchmark is ‘government neutrality,’ not ‘governmental avoidance of bigotry.’ A law is not neutral and generally applicable unless there is ‘neutrality between religion and non-religion.’ And a law can reveal a lack of neutrality by protecting secular activities more than comparable religious ones (citations omitted).
Finding discrimination, the court applied strict scrutiny, focusing on whether the state used the least-restrictive means:
There are plenty of less restrictive ways to address these public-health issues. Why not insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities? Or perhaps cap the number of congregants coming together at one time? If the [state] trusts its people to innovate around a crisis in their professional lives, surely it can trust the same people to do the same things in the exercise of their faith.
For additional analysis, see Case #9. In the end, the court issued an injunction that will last until full resolution of the appeal (often a year-long process) or until another order of the court. It said:
All this preliminary injunction does is allow people—often the same people—to seek spiritual relief subject to the same precautions as when they seek employment, groceries, laundry, firearms, and liquor. . . . [T]he unexplained breadth of the ban on religious services, together with its haven for numerous secular exceptions, cannot co-exist with a society that places religious freedom in a place of honor in the . . . First Amendment.
Author’s Note: As stated in this article’s introduction, precedent comes in many forms. On issues of federal law, the highest comes from the US Supreme Court. The next highest comes from the twelve federal circuit courts. When two or more circuits agree on a principle, it gains weight. When the principle is authored by a judge who’s a noted expert in the field, it gains weight.
In framing “religious bigotry” as a distraction, the Sixth Circuit cited a Tenth Circuit decision (authored by a noted expert in religious freedom) that said the intent required to prove religious discrimination “is merely the intent to treat differently.” This now appears to be the position of the US Government in support of churches in these cases. See Case #8.
Case #17: Hawse v. Page (E.D.Mo. May 11, 2020)
On May 11, 2020, US District Judge Ronnie White dismissed most of the claims by St. Louis parishioners against County Executive Sam Page. The parishioners, acting pro se (without a lawyer), challenged an order “banning religious services attended by more than 10 persons.”
They asserted constitutional and state RFRA claims. But they failed to meet basic requirements. Put simply, their Complaint failed to allege how the TRO they requested would provide the relief they sought. Among its deficiencies, the Complaint did not allege that the parishioners’ churches would even “be holding gatherings in excess of 10 people [if not] for the Order.”
Judge White thus dismissed all but one of their claims for lack of standing. He rejected their “attempt to reframe the basis of their claim” in their opposition brief and noted it still missed “the mark regarding the Court’s standing inquiry.” But his dismissal was “without prejudice,” meaning the parishioners could amend their Complaint to try to correct its deficiencies.
Case #18: Elim Romanian Pentecostal Church v. Pritzker (N.D.Ill. May 13, 2020)
On May 13, 2020, US District Judge Robert Gettleman ruled for a second time in this case against Illinois Governor J.B. Pritzker’s order to the “extent that it restricts religious gatherings to ten persons.” The governor’s order challenged here is the same one reviewed by Judge John Lee of the same judicial district in Cassell v. Snyders (Case #10).
The church had requested a TRO to allow its services on the prior Sunday. Due to insufficient time to consider the TRO, Judge Gettleman denied it. Yet, the church “elected to disobey [him] and hold services at its church with more than the allotted ten persons.” Moreover, “the church’s YouTube channel lists a live recording from last Sunday’s service that was one hour, forty-seven minutes long, with virtually no one in the congregation or clergy wearing a face covering.”
Judge Gettleman then considered the constitutional claims. First, he analyzed the claims under the US Supreme Court precedent on public crises and the Fifth Circuit’s similar decision in In re Abbott (discussed in Case #6). Under such state-friendly precedent, he concluded the church had “a less than negligible chance of success on their constitutional claims.”
Next, Judge Gettleman analyzed modern Free Exercise Clause precedent. Leaning heavily on the analysis of his district colleague in Case #10 Gettleman found no discrimination. He concluded:
Gatherings at places of worship pose higher risks of infection than gatherings at businesses. . . . [The governor’s] Order has nothing to do with suppressing religion and everything to do with reducing infections and saving lives. There is no evidence that [the governor] has a history of animus toward religion.
Judge Gettleman rejected all other constitutional claims as well. “Nor do plaintiffs have even a negligible [chance] of success on their Free Speech and Assembly claim.” He never mentioned the state RFRA, which evidently was not raised by the church.
In parting words, Judge Gettleman said the church’s “request for an injunction, and their blatant refusal to follow the mandates of the [governor’s] Order are both ill-founded and selfish.”
Nowhere did Judge Gettleman cite or discuss any of the above cases that came to contrary conclusions, including either decision of the Sixth Circuit (Cases #9 and #16).
Case #19: First Pentecostal Church v. City of Holly Springs (N.D.Miss. May 14, 2020)
On May 14, 2020, in a sequel to Case #7, US District Judge Michael Mills issued another order amounting to an unusual “advisory opinion.” This one serves as a stark warning to churches to behave responsibly not only with respect to public safety but with respect to their litigation.
After Judge Mills’ prior order, the city “moved expeditiously to amend its ordinance to allow the very sort of drive-in services which plaintiff itself indicated in its TRO motion were acceptable.” He had “hoped (and expected) that the City’s actions would resolve this matter.” They did not.
Judge Mills sharply criticized the church’s tactics. He said the church “seems determined to push the legal envelope [to include] holding indoor church services which, as discussed below, both state and local officials have very strongly discouraged.” He then explained how the church was “proceeding in an excessively reckless and cavalier manner” in this litigation:
[I] observed a youtube video [with church] members staging a mass visit to Wal-mart . . . merely to make a point in their dispute with the City. Indeed, a church member can be heard stating near the end of the video ‘we told them we were coming to Walmart to prove a point, and we proved our point.’ Thus . . . church members . . . apparently were comfortable in subjecting actual shoppers with potential exposure to a deadly virus merely to make a point in this litigation. . . . [I consider the visit] to have been highly reckless in light of the ongoing pandemic, and [I] frankly suspect that plaintiff’s members regard this controversy as a game of sorts and enjoy the publicity attendant to it. . . . [I am] also troubled by plaintiff's evident lack of a plan to safely hold services . . . .
Judge Mills also was troubled by the church’s “habit in this litigation of taking the time to carefully prepare briefs . . . and then demanding an immediate ruling . . . with opposing counsel left to make hurried arguments in a telephonic hearing.” This, was a “fundamentally unfair process,” the judge said, indicating he “will no longer tolerate it.” He continued:
[If I believe] that granting this particular [church] the injunction it seeks would unduly endanger the lives of Holly Springs residents, then [I] will not issue that injunction, regardless of [my] views on the broader legal issues in this case. At that point, plaintiff may seek a more receptive audience at the Fifth Circuit, if it so desires. . . . [I am] more concerned with deciding these important matters correctly than with doing so immediately, and [I am] confident that plaintiff’s members will suffer no undue harm by continuing to hold drive-in services pending a [further ruling].
Those “broader legal issues” may well favor the church, Judge Mills stated. “In the event that Governor Reeves clarifies that a complete ban on indoor church services exists . . . then it appears that a long shadow will be cast on that ban by” the Sixth Circuit’s ruling in Roberts v. Neace (Case #16).” Noting his “serious reservations about whether . . . the Sixth Circuit adequately appreciated the unique dangers arising from the typical church service,” Judge Mills conceded that “Roberts clearly represents significant authority in this context.”
Case #20: Spell v. Edwards (M.D.La. May 15, 2020)
On May 15, 2020, US District Judge Brian Jackson denied a TRO to Pastor Mark Spell of Life Tabernacle Church against Louisiana Governor John Bel Edwards’s orders “restricting the gathering of more than ten people in a single space at a single time.”
Pastor Spell said the congregation’s “religious beliefs require them to assemble for church in person,” and that he had a “duty to lay hands on the sick and pray for them,” all of which, “along with holy communion and the love offering, would lose meaning absent a public gathering.” He argued that the orders were “discriminatory and disparately applied” because they allowed other “similarly situated non-religious businesses” such as “big box retailers, groceries and hardware stores” to remain open to “crowds larger than 10 people.”
The governor responded that “the transient, in-and-out nature of consumer interaction with businesses . . . are markedly different from the extended, more densely packed environments of churches.” He also argued that the church’s case should be dismissed as “moot” (pointless) since his latest order permitted “churches and other faith-based organizations . . . to hold indoor services with up to 25% capacity of total occupancy as determined by the State Fire Marshal.”
Judge Jackson seemed to agree with “mootness” but still addressed the church’s claims. Without mentioning any of the church-friendly cases cited above, he deferred to the governor based on the same government-friendly Fifth Circuit decision (In re Abbott) discussed in Cases #6 and #18.
In re Abbott had allowed pandemic-related restrictions on abortion rights. Citing Supreme Court precedent, it said “all constitutional rights may be reasonably restricted to combat a public health emergency” so long as the restrictions have a “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion” of constitutional rights.
Judge Jackson found the governor’s order to be neutral as it appeared to restrict “religious and non-religious gatherings to the exact same extent and degree.” He implied the church had enjoyed substantial freedom since it could hold indoor services “for smaller numbers of congregants” and “outdoor services with as many congregants” as it liked.
While many pandemic-related cases cite In re Abbott as precedent for temporary restrictions on constitutional rights (see Case #6), that specific precedent was binding here on Judge Jackson because he serves within the Fifth Circuit (covering Louisiana, Texas, and Mississippi).
Case #21: Berean Baptist Church v. Cooper (E.D.N.C. May 16, 2020)
On May 16, 2020, US District Judge James Dever granted TRO relief from North Carolina Governor Roy Cooper’s orders designed to have all gatherings of 10 or more people “take place outdoors unless impossible.” For worshipers to meet indoors, they had to be prepared to explain to a sheriff that it was “impossible to worship outside.”
Since North Carolina has no state RFRA, this case turned solely on the Free Exercise Clause. Judge Dever initially expressed “grave concerns” whether the Free Exercise Clause even allowed state officials to assess if a church “correctly determined that their religious beliefs dictated the need to have more than 10 people inside to worship.” Then he considered whether differential treatment between secular and religious activities amounted to discrimination.
He compared worshipers to “those who operate or gather and wait at an airport, bus, or train terminal, a medical facility, a shopping [center], WalMart, Lowes,” or other business:
[All that] such individuals and businesses must do to comply [is to] to ensure that people “follow . . . Social Distancing . . . as much as possible, and they circulate within the space so that there is no sustained contact between people.” Not so for religious entities or worshipers [since a sheriff] has the power to decide whether [they have] met the “no-more-than-10-inside-unless-impossible” requirement . . . . If the answer is wrong, [they face] prosecution . . . . These glaring inconsistencies between the treatment of religious entities and individuals and non-religious entities and individuals take [the order] outside the “safe harbor for generally applicable laws” (citations omitted).
“But wait,” the judge said, “there’s more inconsistency.” He next discussed funerals:
[T]here is no public health rationale for allowing 50 people to gather inside at a funeral, but to limit an indoor religious worship service to no more than 10 people. Some funerals are religious [and some] are not religious. The Governor’s counsel could not explain why the Governor trusts those who run funerals to have 50 people inside to attend the funeral, but only trusts religious entities and individuals to have 10 people inside to worship.
In explaining the disparate treatment, Judge Devers quoted extensively from Roberts v. Neace (Case #16), which he also quoted on the standard for religious discrimination as follows:
This court does not doubt that the Governor is acting in good faith [but] it does not make a difference that faith-based bigotry did not motivate [the order]. . . . The constitutional benchmark is governmental neutrality; not governmental avoidance of bigotry. . . . A law is not neutral and generally applicable unless there is neutrality between religion and non-religion. . . . And a law can reveal a lack of neutrality by protecting secular activities more than comparable religious ones. . . . [T]he Free Exercise Clause protects religious observers against unequal treatment (citations and internal punctuation omitted).
The judge also compared North Carolina’s response to that of other states:
[T]he Governor appears to trust citizens to perform non-religious activities indoors [but not] to do the same when they worship indoors together. . . . Notably, 15 other Governors trusted the people of their states [Pennsylvania, West Virginia, Ohio, Michigan, North Dakota, South Dakota, Utah, Colorado, Arizona, Texas, Arkansas, Tennessee, South Carolina, Georgia, and Florida] and exempted religious gatherings from any attendance limitations during this pandemic. The Governor has failed to cite any peer-reviewed study showing that religious interactions in those 15 states have accelerated the spread of COVID-19 in any manner distinguishable from non-religious interactions.
“Likewise, common sense suggests [church goers] have every incentive to behave safely and responsibly whether working indoors, shopping indoors, or worshiping indoors.”
He explained how the orders failed strict scrutiny, quoting extensively again from Case #16. Then he concluded:
[Worshipers] simply want [the] same treatment as they and their fellow non-religious citizens receive when they work at a plant, clean an office, ride a bus, shop at a store, or mourn someone they love at a funeral. . . . The court trusts worshipers and their leaders to look after one another and society while exercising their free exercise rights just as they and their fellow citizens ([religious] or not) do when engaged in non-religious activities.
This article will continue to get updated with new summaries as we track this trend nationwide. Sign up for the free Church Law & Tax Update e-newsletter to get the latest information.
To learn more about how federal and state courts decide religious freedom cases, and to understand which states have their own RFRAs, check out the 50-State Religious Freedom Laws Report, a new downloadable resource from Church Law & Tax.
J. Matthew Szymanski is an attorney on his second tour at Gammon & Grange, a DC-area law firm specializing in nonprofit and church law. After litigating religious freedom cases with the firm in the 1990s, he left for Capitol Hill and then for China, where he frequently guest-lectured at Chinese law schools for seven years. He returned to Gammon & Grange in 2018.