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Tracking Faith-Based Legal Challenges to Pandemic Orders

How federal courts nationwide are addressing religious liberty arguments by churches.

Last Reviewed: June 29, 2020
Tracking Faith-Based Legal Challenges to Pandemic Orders
Image: Barry Winiker | Getty

The COVID-19 (coronavirus) pandemic has prompted many state governments to impose public-gathering and reopening restrictions in an attempt to slow the spread of the illness. The restrictions, in turn, have prompted lawsuits by various plaintiffs, including prison inmates, abortion clinics, erotic nightclubs, political candidates, and churches.

Many plaintiffs have won judicial relief for activities entitled to constitutional protection. Churches, which receive considerable protections under the First Amendment of the US Constitution, have experienced mixed results in dozens of cases.

Churches got off to a good start in Case #1 (below), the judge ruling that, “if beer is essential, so is Easter.” Church plaintiffs in the three subsequent cases promptly lost, though. Other faith-based organizations (FBOs) are filing cases as well. Overall, they are losing more than winning.

Most church-related cases have occurred in federal courts and most have turned on the US Supreme Court’s modern precedents interpreting the Free Exercise Clause of the First Amendment.

Losses in court have consequences: FBO members and missions suffer, as do the communities they serve. Moreover, adverse court rulings establish precedent that lasts decades and can hinder religious exercise rights both now and for years to come.

With this in mind, this frequently updated article will summarize these cases with an aim to provide practical and legal guidance to help churches steward their resources well.

What’s transpired so far

One key assessment in these cases is the extent of risk posed by religious gatherings in relation to COVID-19’s spread. While stories and studies have noted outbreaks from religious services, such outbreaks largely occurred before American society fully understood COVID-19’s threat. An underlying question in these cases is whether houses of worship will act responsibly when they meet.

States have varied in their public-gathering restrictions affecting churches. As of Case #21, decided on May 16, 2020, the following 15 states “exempted religious gatherings from any attendance limitations during this pandemic”: Arizona, Arkansas, Colorado, Florida, Georgia, Michigan, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.

In Case #21, in which the court granted a church relief from North Carolina’s restrictions, the state “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.” The judge added that, “common sense suggests [worshipers] have every incentive to behave safely and responsibly whether working indoors, shopping indoors, or worshiping indoors.”

The other 35 states have imposed limitations ranging from banning all religious gatherings to delaying church reopenings. All such limitations are changing constantly in response to fluid “conditions on the ground.”

Another key assessment in these cases involves the definition of religious discrimination, and what does—or doesn’t—trigger protections for churches. What secular activities should be considered comparable to religious activities? Should churches be compared to schools, theaters, and other assemblies? Or should they be compared to any secular activities that gather people in close quarters? And what sort of intent must be proven with respect to the state’s treatment of churches? Religious bigotry? Or merely the intent to treat differently, such as labeling certain businesses and activities “essential” and others (including churches) as “nonessential”?

As shown below, most courts have found worship services to be unlike, and thus riskier than, secular activities like shopping, traveling, or business meetings. But other courts have disagreed, as has the US Government.

On April 14, 2020, the US Department of Justice (DOJ) began filing court statements in support of houses of worship. On May 19, 2020, the DOJ sent a letter warning California’s governor to “treat religious activities equally with comparable nonreligious activities.” On May 22, 2020, President Donald Trump warned all governors to treat all FBOs as “essential,” and the US Centers for Disease Control and Prevention (CDC) released reopening guidance for FBOs.

Where things are heading

FBOs have not always helped their own cause. Judges have sharply rebuked the public safety behavior and/or the litigation tactics of the FBO at issue in some cases, including Case #19. The resulting precedents have proven damaging.

All federal cases start in trial courts called district courts, where each case is presided over by a single district judge. His or her decision governs the case at hand but has little precedential value. It can be considered for its persuasive value but it has no binding force, even within the same judicial district.

When a district judge’s decision gets appealed, it goes to the US courts of appeals for the circuit where the case is located. Each such appeals court has certain legal authority over the states within its circuit. Each appeal is decided by a panel of three appeals judges called circuit judges. Majority decisions of a panel speak for all circuit judges on the court and are highly precedential. The core rationale of a panel is binding precedent for all district judges within the circuit and even for all circuit judges within the circuit unless a majority of all its judges decide to overrule it. The core rationale also serves as persuasive precedent elsewhere.

The first two appeals court cases in this article came from a panel of the US Court of Appeals for the Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee). In early May, that panel ruled for a Kentucky church in Cases #9 and #16, granting injunctions pending appeal and explaining its rationale in detail. Its core rationale is now binding precedent in those four states and persuasive precedent elsewhere.

On May 16, 2020, in Case #22, a panel of the Seventh Circuit (covering Illinois, Indiana, and Wisconsin), without citing Cases #9 or #16, came to the opposite conclusion. In a one-paragraph order, the panel said an Illinois church had not shown a “sufficient likelihood of success on the merits to warrant the extraordinary relief of an injunction pending appeal.” Such injunctions can last until the full resolution of an appeal—often a year-long process.

On May 22, two more circuits ruled. In Case #26, a panel of the Ninth Circuit, which covers the westernmost states, rebuffed a California church. That same day, in Case #27, a panel of the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, provided a Mississippi church with relief from restrictions until the district judge rules. One of the circuit judges wrote:

The [church] was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet you Stay home Now YOU HYPOKRITS.” . . . One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken.

The churches in Cases #22 and #26 petitioned the US Supreme Court. On May 29, 2020, the Court rebuffed both churches. See Cases #29 and #30. Although the Court’s brief orders in both cases offer little guidance, the unfavorable concurring opinion of Chief Justice Roberts in Case #30 is being cited by many lower courts to support rulings against churches.

The case summaries below provide further details on how key facts, arguments, and rationale have shaped the varying outcomes of church-related cases. By monitoring these cases closely, church leaders and their attorneys can discern key issues and make more informed decisions on reopening or filing their own legal challenges.

Case #1: On Fire Christian Center v. Fischer (W.D.Ky. (Sixth Circuit) April 11, 2020)

While preparing for Easter, On Fire Christian Center faced prosecution in Kentucky 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 has since been nominated and confirmed 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.

Judge Walker acknowledged the COVID-19 crisis and US Supreme Court precedent instructing courts to give great deference to public officials during public health crises. At the same time, he emphasized “religious liberty’s importance to our nation’s story, identity, and Constitution.” Applying the Free Exercise Clause, 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.

In so holding, Judge Walker applied two Supreme Court cases interpreting the Free Exercise Clause, Employment Division v. Smith, 494 U.S. 872 (1990) and Church of the Lukumi Babalu Aye v. City of Hialeah, 503 U.S. 935 (1992). This Smith/Lukumi standard—which will govern Free Exercise analyses in all of these pandemic-related cases—permits government actions that burden religion so long as they meet two interrelated requirements: religious neutrality and general applicability. But this standard condemns government actions that do not, such as those that discriminate against religious activities.

Thus, as Judge Walker wrote, “the Free Exercise Clause remains [a] bulwark against discrimination toward people of faith.” But discrimination means different things to different judges. For Judge Walker, unjustified differential treatment was enough.

The city also violated the state Religious Freedom Restoration Act (RFRA), Judge Walker ruled. This statute prohibits Kentucky state and local officials from “substantially burdening” religion unless they prove by “clear and convincing evidence” that they have a “compelling” state interest in imposing the burden and have used the “least restrictive means” in doing so. Finding the RFRA analysis to be comparable to his “strict scrutiny analysis in the constitutional context,” Judge Walker determined the city’s actions also violated the state’s RFRA.

Author’s Note: In response to the Smith case, a near-unanimous Congress in 1993 passed the federal Religious Freedom Restoration Act (RFRA). Ever since a 1997 US Supreme Court decision, however, the federal RFRA has applied only to the federal government, and not to state or local governments. 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, Pennsylvania, 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. (Sixth Circuit) April 17, 2020)

On April 17, 2020, US District Judge Curtis Collier denied a TRO to a Chattanooga parishioner who claimed Mayor Andrew Berke’s order prohibited him from attending in-person services at his church and drive-in services at another church. This parishioner brought his case pro se (without a lawyer), and Judge Collier dismissed it for failure to follow basic procedures.

In his opinion, Judge Collier only addressed Judge Walker’s decision in a footnote:

Without [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. (Tenth Circuit) April 17, 2020)

On April 17, 2020, US District Judge James Browning denied a TRO to this “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 said its big facility enabled it to comply strictly with health protocols while hosting the few parishioners seeking in-person worship. If the number of in-person parishioners increased, the church committed “to turn parishioners away and direct them to view church services online.” It claimed constitutional harm, mainly under the Free Exercise Clause.

Judge Browning was skeptical of the church’s arguments. He cited Jacobson v. Massachusetts, 197 U.S. 11, a 1905 decision by the US Supreme Court that allowed Massachusetts to infringe upon constitutional rights during its smallpox response. Judge Browning also cited a 2020 decision by the US Court of Appeals for the Fifth Circuit in In re Abbott, which relied on Jacobson to allow Texas to infringe upon abortion rights during its COVID-19 response. Like most COVID-19 cases, Judge Browning’s citations to Abbott and Jacobson led to deferring to state pandemic responses in all but the clearest cases of constitutional harm. To prevail, claimants must prove a violation of their rights “beyond all question”—a minimal constitutional standard for a state to meet.

Using this standard, Judge Browning analyzed the Free Exercise claim under Smith/Lukumi, as Judge Walker did in On Fire (see Case #1). However, in this case Judge Browning found no discrimination, including “no evidence of animus against Christianity in particular or against religion in general.”

Judge Browning did not find Judge Walker’s analysis or conclusion in Case #1 persuasive. Judge Browning distinguished this case, which involved in-person services, from Case #1, which involved drive-in services. There was also no mention of New Mexico’s state RFRA in Judge Browning’s decision, suggesting the state RFRA was not argued by the plaintiffs.

Case #4: Maryville Baptist Church v. Beshear (W.D.Ky. (Sixth Circuit) 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 (Case #1). In this case, Maryville Baptist challenged Kentucky Governor Andrew Beshear’s ban on faith-based mass gatherings 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. Providing little analysis, he rejected all claims, including ones based on the Free Exercise Clause and the state’s RFRA, both of which require strict judicial scrutiny in certain instances. Strict scrutiny, the highest standard a court can apply, usually proves fatal to a government’s case. To trigger strict scrutiny for constitutional claims, claimants usually must show some form of discrimination exists under a state law or action. To trigger strict scrutiny for a RFRA claim, claimants must show a neutral law of general applicability, either on its face or in its application, places a substantial burden on their religious exercise. Whenever strict scrutiny is triggered, courts require government officials to prove they have a compelling interest for their law or action, and they used the least restrictive means (narrow tailoring) to implement that law or action—a daunting test.

On May 2, 2020, Judge Hale was reversed by the Sixth Circuit in Case #9 below.

Case #5: First Baptist Church v. Kelly (D.Kan. (Tenth Circuit) April 18, 2020)

On April 18, 2020, US District Judge John Broomes ruled for two Baptist churches after Kansas Governor Laura Kelly rejected their requests “to hold in-person worship services provided the congregants follow rigorous . . . 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 (Case #1), 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 the Supreme Court in Smith and Lukumi (see Case #1). The orders “expressly target religious gatherings on a broad scale and are, therefore, not facially neutral,” he said. 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.”

Judge Broomes acknowledged Governor Kelly “has immense and sobering responsibility to act quickly to protect the lives of Kansans from a deadly epidemic.”

But Judge Broomes focused on the ways the state’s orders still 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, Judge Broomes found the orders lacking both religious neutrality and general applicability. Both shortcomings amounted to differing 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. (Ninth Circuit) April 23, 2020)

On April 23, 2020, US District Judge Jesus Bernal denied a TRO to parishioners seeking relief from the orders of California Governor Gavin Newsom and two 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 orders were highly restrictive. The state’s order was a stay-at-home order. One local order prohibited “all 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 other local order allowed “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 easily survived the “minimal scrutiny” required by Jacobson/Abbott (see Case #3). He said they also would “survive traditional constitutional analysis,” since they “likely do not impermissibly infringe on Plaintiffs’ constitutional rights.”

Judge Bernal decided the orders were religion-neutral as well as generally applicable. Unlike in Cases #1 and #5, the differential treatment of religious activity was not enough for Judge Bernal. He searched for evidence that officials had sought to discriminate. Finding none, he applied minimal judicial scrutiny, which only requires a government to have a “rational basis” for its laws or actions (a modest judicial standard that is almost always met).

His decision largely turned on his view of risk. He acknowledged the orders did not include “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,” he said, concluding as follows:

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.

Case #7: First Pentecostal Church v. Holly Springs, Miss. (N.D.Miss. (Fifth Circuit) Apr 24, 2020)

On April 24, 2020, US District Judge Michael Mills delayed ruling on a TRO and instead urged the Mississippi-based parties to compromise.

He contrasted this case with another church case on his docket, in which Greenville, a nearby city, repealed its restrictive order affecting churches before the court ruled on it. “The unreasonable (and likely unconstitutional) nature of [the] original order [of Greenville] was tacitly acknowledged by the [City], which has since replaced it with one which specifically allows drive-in services, so long as the vehicles’ windows are raised.” He suggested a compromise might also work for this case.

Case #8: Lighthouse Fellowship Church v. Northam (E.D.Va. (Fourth Circuit) 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. The church 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.”

Judge Allen rejected all church claims based on the First Amendment. Regarding the Free Exercise claim under Smith/Lukumi (see Case #1), she examined the “Governor’s motives in drafting these Orders” and found a “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 Virginia’s RFRA. With a strict scrutiny standard similar to Kentucky’s (Cases #1 and #4), Virginia’s RFRA 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.”

Judge Allen found no substantial burden to trigger strict scrutiny of the state’s actions (see Case #4):

[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. . . . The alleged harms to Plaintiff include the temporary inability to host in-person religious worship services in groups larger than ten. Assuming [for the sake of argument] 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).

Allen never cited key state court precedent, which on matters of state law is binding on federal judges. Specifically, she never considered a 1985 Virginia Supreme Court decision, which says: “The constitutional guarantees of religious freedom have no deeper roots than in Virginia, where they originated, and nowhere have they been more scrupulously observed.”

On May 3, 2020, the US Department of Justice (DOJ) filed a Statement of Interest with Judge Allen. It supported the church’s request for an injunction pending appeal—to put the Orders on hold until the Fourth Circuit makes a ruling. On behalf of the “United States,” DOJ argued:

[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 [infringed] the church’s free exercise of religion. Unless [Virginia] 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.

Case #9: Maryville Baptist Church v. Beshear (Sixth Circuit (three-judge panel) May 2, 2020)

Author’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 Kentucky, Tennessee, Ohio, and Michigan) issued the first circuit decision in these cases. A panel consisting of Circuit Judges Jeffrey Sutton, David McKeague, and John Nalbandian reviewed the decision of District Judge David Hale in Case #4. Hale had upheld the mass-gatherings orders of Kentucky Governor Andy Beshear that effectively banned worship services, whether “drive-in” or “in-person.”

On Easter Sunday, police came to the church, informed attendees they were violating criminal laws, and recorded all their license plates “whether they had participated in a drive-in or in-person service.” The church subsequently filed suit in district court, asserting claims under the Kentucky RFRA and the US Constitution. Judge Hale rejected these claims (Case #4). But the panel unanimously reversed Judge Hale’s decision and issued an injunction pending appeal, finding the church was “likely to succeed on its state and federal claims.” The panel made many key points.

First, analyzing the RFRA claim, the panel found the state’s orders had imposed a substantial burden on the church. After noting that Kentucky’s RFRA parallels all state and federal RFRAs, all of which impose strict scrutiny “on laws that burden sincerely motivated religious practices,” the panel ruled that the orders “prohibiting religious gatherings, enforced by police officers . . . amount to a significant burden on worship gatherings.”

Second, using the strict scrutiny standard, the panel found the compelling interest in public safety was not pursued with the least restrictive means. It noted the “orders permit uninterrupted functioning of typical office environments, which presumably includes business meetings,” then asked:

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 [when congregants committed crimes] by sitting in their cars in a parking lot, hundreds of cars were parked in grocery store parking lots less than a mile [away]. 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.

Third, the panel said the orders also likely violated the federal Free Exercise Clause under the Smith/Lukumi standard (see Cases #1 and #5). As the panel noted, “a generally applicable law that incidentally burdens religious practices usually will be upheld [while] 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.” (See also Cases #1, #3, #4, and #5.) Observing that “[d]iscriminatory laws come in many forms,” the panel 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.

Fourth, the panel analyzed the orders for general applicability (nondiscrimination). They had “several potential hallmarks of discrimination,” the panel noted, including prohibiting “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.” Rather, according to the panel:

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 panel 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 good motives were 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 panel then examined the key factors for general applicability that have been decisive—one way or the other—in nearly all of these cases nationwide. It observed:

[If] 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,” the panel said. “While the law may take periodic naps during a pandemic, we will not let it sleep through one.” Regarding the “Zoom service” option:

[W]ho 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.

The panel noted many of the professionals, such as lawyers, accountants, and laundromat workers whose jobs receive exemptions are also the ones who will attend worship services. The panel continued:

[Kentucky suggests the reason for these] 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.

Given this reality, why “permit people who practice social distancing and good hygiene in one place but not another?” the panel asked. “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.”

Still, the panel worried about risks of in-person worship and thus issued only a narrow injunction for “drive-in services” as the appeal continued. (It expanded its injunction to in-person services in Case #16.)

Finally, the panel signaled its intent that its decision here be fully precedential. Thus, to the extent its rationale fits the facts of similar cases, it will bind all lower courts in Kentucky, Michigan, Ohio, and Tennessee; it will bind the Sixth Circuit itself unless a majority of the full 16-judge court overrules it; and its logic will be considered by courts nationwide.

Case #10: Cassell v. Snyders (N.D.Ill. (Seventh Circuit) May 3, 2020)

On May 3, 2020, US District Judge John Lee denied a TRO to Pastor Stephen Cassell of Beloved Church against stay-at-home orders issued by Illinois Governor J.B. Pritzker and enforced by Sheriff David Snyders. At issue was Pritzker’s latest order, which recognized “the free exercise of religion as an essential activity” and allowed worshipers to engage in it “so long as they comply with Social Distancing Requirements and refrain from gatherings of more than ten people.”

Judge Lee considered the Free Exercise claim under Smith/Lukumi (see Case #1). “This case is different,” he said. “For one, nothing in the record suggests that Governor Pritzker has a history of animus towards religion or religious people, and Plaintiffs do not argue otherwise.”

Judge Lee also considered the Sixth Circuit’s decision in Case #9, but distinguished it in two ways. First, unlike Kentucky, 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.

Judge Lee concluded by quoting Case #9: “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.” That, he said, “is exactly [what] Pritzker’s latest order does.”

The state RFRA claim also was unlikely to prevail, Judge Lee said. “Assuming” a substantial burden on the church, he cited its size, configuration, and practical limitations in finding no less restrictive means available. “While permitting the Beloved Church to hold in-person services with its full congregation might be less [restrictive], it would not advance the [state’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. (Ninth Circuit) 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.” Their order said “in-person services” were prohibited and that violations were “punishable by fine and/or imprisonment.” However, the order said that “Bethel Open Bible Church [could] continue to operate its child-care facility ‘consistent with the order of the State Public Health Officer.’”

This case centered on the federal Free Exercise Clause since California has no RFRA. Judge Mendez cited Smith/Lukumi and recent church rulings nationwide—mostly those against churches. Like Cases #3, #8, and #10, Judge Mendez emphasized the lack of “animus toward religion” in finding no discrimination. But a bigger blow to the church was his reliance on Judge Hale’s decision in Case #4 without noting it was reversed.

Judge Mendez never cited Case #9. While a precedent of the Sixth Circuit is not binding in the Ninth Circuit, it’s still a vital enough appellate precedent that he would be expected to follow it or provide good reason not to follow it. Regardless, when a judge cites a case that was reversed or overruled, such as Case #4 here, he or she must note that crucial fact (if aware of it).

Case #12: Roberts v. Neace (E.D.Ky. (Sixth Circuit) 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 “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 the “restrictions on out-of-state travel,” which prevented 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.”

Like Case #11, Judge Bertelsman relied on the reversed decision in Case #4. He noted that Judge Hale had been “overruled” in 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.” (Bertelsman was reversed by the Sixth Circuit in 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: In volunteering his view of a RFRA claim, Judge Bertelsman adopted Judge Hale’s view without any apparent counterargument by the church. It’s important for parties to assert and fully argue all winnable claims in religious freedom cases, which usually means including a state RFRA when one exists.

Case #13: Tabernacle Baptist Church v. Beshear (E.D.Ky. (Sixth Circuit) May 8, 2020)

On May 8, 2020, US District Judge Gregory Van Tatenhove granted a TRO for in-person services after reviewing the decisions of his Kentucky colleagues in Cases #1, #4, and #12.

Judge Van Tatenhove’s preview of the case was broad:

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 left open the issue of in-person services in Case #9, it clearly suggested what was coming. Regardless, the Sixth Circuit’s Smith/Lukumi Free Exercise analysis was binding precedent here:

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 (citations omitted).

Thus, in his view, 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.” In fact, even if “viewed through the state-friendly lens” of Jacobson/Abbott (see Case #3), the judge said Kentucky’s prohibition on religious services was “beyond what was reasonably required for the safety of the public.” Having thus fully 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. (Sixth Circuit) May 8, 2020)

On May 8, 2020, the same day Judge Van Tatenhove ruled in favor of in-person services in Case #13, his Kentucky colleague Judge David Hale did the same and for the same reason: the result was required by Case #9. In Case #9, the Sixth Circuit reversed Judge Hale’s decision in Case #4 regarding drive-in services while returning it to Judge Hale to reconsider as to in-person services. The binding rationale of Case #9 left Judge Hale little wiggle room.

Invoking a strict scrutiny standard (see Case #4), Judge Hale upheld the church’s RFRA claim, since the governor presented no evidence that “there was no other, less restrictive, way to achieve” his goals. Hale also upheld the 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], the Governor has offered little to show that the orders were narrowly tailored.”

Case #15: Calvary Chapel v. Mills (D.Maine (First Circuit) May 9, 2020)

On May 9, 2020, US District Judge Nancy Torresen refused a TRO against Governor Janet Mills of Maine, where churches remained “free to conduct drive-in services, online programs, and in-person assemblies of up to ten people.” Maine has no RFRA.

Analyzing the federal constitutional claims, 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 test of Jacobson/Abbott (see Case #3). 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 the Smith/Lukumi Free Exercise test (see Cases #1, #5, and #9), as described below.

Regarding neutrality, Judge Torresen noted that a “pattern of animosity” can prove discrimination. But she focused mostly on comparable scenarios (comps), noting that in “other parts of the country, houses of worship have been linked to the spread of COVID-19.” Thus, in her view:

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: “[T]hese 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, Judge Torresen 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 protections that theaters, concert halls, and sport venues do not.

Judge Torresen only 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 Maine’s order since Kentucky’s orders banned all religious gatherings. She did not discuss the religion-friendly analysis of the Kentucky cases or others (e.g., Case #5), which compared worship to secular gatherings more broadly.

Case #16: Roberts v. Neace (Sixth Circuit (three-judge panel) May 9, 2020)

On May 9, 2020, the US Court of Appeals for the Sixth Circuit issued a second unanimous decision by the same panel. In Case #9, the panel issued 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, relying substantially on its analysis in Case #9.

This time, the panel omitted any discussion of the state RFRA. Instead, it focused solely on the Free Exercise Clause using Smith/Lukumi, which turns on discrimination. Observing that “[f]aith-based discrimination can come in many forms,” the panel focused on comparison of church activities to “the four pages of exceptions in the orders, and the kinds of group activities allowed.” Citing other circuits, it said: “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.”

Significantly, the panel articulated the rule for religious discrimination 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 by Kentucky, the court applied the strict scrutiny standard (see Case #4), 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.

The court issued an injunction pending appeal, explaining:

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 explained in this article’s introduction, precedent comes in many forms. On issues of federal law, the highest comes from the US Supreme Court, followed by the twelve federal circuits. When two or more circuits agree on a principle, it gains weight. When the principle is authored by a judge who is a noted expert in the field, it gains weight. In this case, 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 understanding is now the position of the US Government in support of churches in these cases. See Case #8.

Case #17: Hawse v. Page (E.D.Mo. (Eighth Circuit) May 11, 2020)

On May 11, 2020, US District Judge Ronnie White dismissed most of the parishioners’ claims against St. Louis 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 the usual claims. But like the pro se parishioners in Case #2, they failed to meet basic requirements. Their Complaint failed to allege how the TRO they sought 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 “without prejudice,” meaning the parishioners could amend their Complaint to try to correct its deficiencies.

Case #18: Elim Romanian Pentecostal v. Pritzker (N.D.Ill. (Seventh Circuit) May 13, 2020)

On May 13, 2020, US District Judge Robert Gettleman denied a TRO against Illinois Governor J.B. Pritzker’s order limiting “religious gatherings to ten persons.” The order here is the same one reviewed by Judge John Lee of the same judicial district in Case #10.

The previous week, the church requested a TRO to allow its Sunday services. Citing a lack of time to consider the TRO, Judge Gettleman denied it. Yet, the church “elected to disobey [my ruling] and hold services at its church with more than the allotted ten persons.” Moreover, the “church’s YouTube channel” had a “live recording from last Sunday’s service that was [nearly two hours] long, with virtually no one in the congregation or clergy wearing a face covering.”

Judge Gettleman addressed the Free Exercise claim. First, he gave it the minimal level of judicial scrutiny established by Jacobson/Abbott (see Case #3), concluding the church had “a less than negligible chance of success.” He also gave it a traditional Free Exercise review under Smith/Lukumi (see Cases #1, #5, #9, and #16), leaning heavily on his district colleague’s analysis in Case #10:

Gatherings at places of worship pose higher risks of infection than gatherings at businesses. . . . As noted in [Case #10], the 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 claimed 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 mention any of the above cases that came to contrary conclusions, including the Sixth Circuit’s decisions in Cases #9 and #16.

Case #19: First Pentecostal Church v. Holly Springs, Miss. (N.D.Miss. (Fifth Circuit) May 14, 2020)

On May 14, 2020, in a sequel to Case #7, US District Judge Michael Mills issued another order, this one serving as a stark warning to churches to behave responsibly regarding how they handle both public safety and their legal matter.

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 saw] a youtube video [of church] members staging a mass visit to Walmart [where a church member concludes that,] “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 [church] members regard this [case] 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] 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 favor the church, Judge Mills said. If the governor “clarifies that a complete ban on indoor church services exists . . . then it appears that a long shadow will be cast on that ban by” Case #16. Despite his “serious reservations about whether . . . the Sixth Circuit adequately appreciated the unique dangers arising from the typical church service,” Judge Mills conceded that Case #16 “clearly represents significant authority in this context.”

(Days later, the church was destroyed by arson, as explained by the Fifth Circuit in Case #27.)

Case #20: Spell v. Edwards (M.D.La. (Fifth Circuit) 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 said the orders were “discriminatory and disparately applied” since they allowed other “similarly situated non-religious businesses” 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 said 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.”

Despite possible mootness, Judge Jackson analyzed the claims. But he did so without citing any of the church-friendly cases above. He first deferred to the governor under the state-friendly test of Jacobson/Abbott. Alternatively, he found the order to be neutral, under Smith/Lukumi, saying it restricted “religious and non-religious gatherings to the exact same extent and degree.” He implied the church was enjoying 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 cases cite the Firth Circuit’s Abbott decision as precedent for temporary restrictions on constitutional rights, Abbott was binding here on Judge Jackson because he serves in the Fifth Circuit (covering Louisiana, Texas, and Mississippi).

Case #21: Berean Baptist Church v. Cooper (E.D.N.C. (Fourth Circuit) 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 centered 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 if differential treatment between secular and religious activities amounted to discrimination under Smith/Lukumi.

For comparison, Judge Dever focused on “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 they] 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 . . . . 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).

The judge also pointed out the way the state’s orders inconsistently treated funerals by allowing 50 people to gather. “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.”

Judge Dever used Case #16’s discrimination standard: “The constitutional benchmark is governmental neutrality; not governmental avoidance of bigotry.” Indeed, the “Free Exercise Clause protects religious observers against unequal treatment,” he said, quoting Lukumi.

Then, he compared North Carolina’s response to that of 15 other states—Pennsylvania, West Virginia, Ohio, Michigan, North Dakota, South Dakota, Utah, Colorado, Arizona, Texas, Arkansas, Tennessee, South Carolina, Georgia, and Florida. These 15 “Governors trusted the people of their states and exempted religious gatherings from any attendance limitations during this pandemic,” he said, whereas “[our] 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.”

In conclusion, he said he “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 (whether religious or not) do when engaged in non-religious activities.”

Case #22: Elim Romanian Pentecostal v. Pritzker (Seventh Circuit (three-judge panel) May 16, 2020)

On May 16, 2020, a panel of the Seventh Circuit (covering Wisconsin, Illinois, and Indiana) reviewed Case #18 by District Judge Robert Gettleman. The panel, which included Circuit Judges Frank Easterbrook, Michael Kanne, and David Hamilton, unanimously reached an opposite conclusion to the three-judge panels of the Sixth Circuit who decided Cases #9 and #16—without citing them or engaging in comparably full legal analysis. In a one-paragraph order, the Seventh Circuit panel said its “preliminary review of this appeal” indicated the church had “not shown a sufficient likelihood of success on the merits to warrant the extraordinary relief of an injunction pending appeal.” It explained:

Governor Pritzker’s Executive Order 2020-32 responds to an extraordinary public health emergency. See generally Jacobson v. Massachusetts, 197 U.S. 11 (1905). The Executive Order does not discriminate against religious activities, nor does it show hostility toward religion. It appears instead to impose neutral and generally applicable rules, as in Employment Division v. Smith, 494 U.S. 872 (1990). The Executive Order’s temporary numerical restrictions on public gatherings apply not only to worship services but also to the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the COVID-19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods.

Finally, the panel noted that, based on “sovereign immunity” principles (discussed below in Case #25), the church was not entitled to injunctive relief against the governor in federal court on the basis of state law—the Illinois RFRA. The church appealed to the US Supreme Court. See Case #29.

Case #23: Antietam Battlefield KOA v. Hogan (D.Md. (Fourth Circuit) May 20, 2020)

On May 20, 2020, US District Judge Catherine Blake denied a TRO against Maryland Governor Larry Hogan’s pandemic orders, including his latest order, which “still prohibits gatherings of over ten people [but] allows indoor religious services at 50% capacity.” The many plaintiffs in this case included secular businesses, such as campgrounds, as well as “religious leaders whose ability to hold [in-person] religious services has been affected by the orders.”

Judge Blake noted the latest order was more permissive, allowing “in-person religious services at half-capacity,” which might render the religious claims moot (pointless) since they were based on the more-restrictive nature of the now-replaced prior orders. But the claims remained alive, she ruled, since the “Governor could amend the executive order to again include religious gatherings in the ban on gatherings of ten or more people.” She turned to the Free Exercise claim, since Maryland has no RFRA.

Like so many judges above, Judge Blake invoked the minimal review of Jacobson/Abbott (see Cases #3, #6, #13, #15, #18, #20, #22), which requires constitutional claims to be proven “beyond all question” during public crises.

Judge Blake performed a careful Smith/Lukumi analysis of the Free Exercise claim. She analyzed the precedents most relevant to this case, including every case opposed to her conclusions (Cases #1, #5, #9, #13, #16, and #21). After distinguishing those cases, she found the governor’s order nondiscriminatory and thus rejected the church’s claim.

With this case and Cases #8 and #21, three district courts within the Fourth Circuit have come to conflicting conclusions that now await resolution by that circuit’s court of appeals.

Case #24: Cameron v. Beshear (E.D.Ky. (Sixth Circuit) May 21, 2020)

On May 21, 2020, US District Judge Gregory Van Tatenhove dismissed Kentucky Attorney General Daniel Cameron’s challenge to Governor Andy Beshear’s restrictions on interstate travel. Van Tatenhove, who ruled for a church in Case #13, outlined this separate case as follows: After his colleague Judge Bertelsman ruled the travel order unconstitutional in Case #12, the governor changed the order from mandatory (prohibiting travel and requiring quarantine) to permissive (any person entering Kentucky “with the intent to stay is asked to self-quarantine” for fourteen days). The amended order was “designed to conform with” Case #12.

The Attorney General said his lawsuit should not be dismissed as moot. He said the governor had not yet “conceded the unconstitutionality of the original Travel Orders,” and could “indefinitely evade judicial review by revoking and re-imposing the unconstitutional restriction at will.”

Judge Van Tatenhove disagreed, finding “no reason to believe the Governor will re-impose the previous Travel Orders.” Citing the many legal challenges to the governor’s pandemic orders (Cases #1, #4, #9, #12, #13, #14, and #16), the judge said it had “never been alleged that the Governor issued the executive orders for any reason other than to protect Kentuckians from the threat of the virus.” Having thus demonstrated his good faith, “it seems unlikely the Governor will re-issue the old constitutionally infirm Travel Orders,” the judge concluded.

Case #25: Lighthouse Fellowship Church v. Northam (E.D.Va. (Fourth Circuit) May 21, 2020)

On May 21, 2020, US District Judge Arenda Wright Allen—who in Case #8 denied a TRO to a Virginia church seeking relief from Governor Northam’s ten-person limit—denied an injunction pending appeal. Judge Allen noted new developments but remained persuaded the church was “unlikely to succeed on the merits” of its claims. She also agreed with Northam’s additional arguments for rejection of the lawsuit based on “sovereign immunity” and “abstention.”

Regarding immunity, Judge Allen ruled that the Eleventh Amendment to the US Constitution barred this federal suit against the governor for two reasons. First, as to the church’s federal claims, the governor technically was not a relevant official for “enforcing” his orders against the church. Second, as to the state RFRA claim, that statute did not unambiguously waive immunity and thus subject state officials to suit in federal court—meaning the suit belonged in state court. (While such defenses remain available against state RFRAs, many states have opted not to raise such defenses but instead defend their restrictions based on their legal merit.)

Regarding abstention, Allen said a federal court needed to abstain and defer to the preexisting state litigation involving the same parties and issues: here, the state prosecution of Pastor Wilson in this case for holding a service in violation of the governor’s orders.

Case #26: South Bay United Pentecostal Church v. Newsom (Ninth Circuit (three-judge panel) May 22, 2020)

On May 22, 2020, the US Court of Appeals for the Ninth Circuit became the second circuit court to rule in these cases. The panel included Circuit Judges Barry Silverman, Jacqueline Nguyen, and Daniel Collins. As in Cases #6 and #11, a church challenged California Governor Gavin Newsom’s stay-at-home orders under the Free Exercise Clause.

After District Judge Cynthia Bashant denied a TRO in an oral ruling, the church requested “injunctive relief permitting them to hold in-person religious services during the pendency of this appeal.” Judge Bashant denied that request and the case proceeded to the appeals court.

The panel majority issued a terse order. With just one paragraph of legal analysis that quoted two phrases from Lukumi, the majority denied the injunction for the same reason as Judge Bashant: the church had not shown a sufficient likelihood of success on their claims.

Circuit Judge Collins wrote a lengthy dissenting opinion, offering insights.

First, Judge Collins rejected the Jacobson/Abbott standard (see Cases #3 and #23). He rejected Abbott’s conclusion that “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.” He denied that Jacobson gives Newsom “the power to restrict any and all constitutional rights, as long as he has acted in good faith and has some factual basis for his edicts.” He said Jacobson was focused on a specific type of constitutional claim. Thus, its “deferential standard of review” would be relevant only if the church “were asserting a comparable . . . claim, but they are not.” Under Jacobson, he said, a crisis may justify temporary constraints only within traditional constitutional limits.

Judge Collins argued the case should “be evaluated under the traditional Lukumi framework” as presented in Case #16. As to neutrality, he said the state’s four-stage Reopening Plan “undeniably discriminate[s] on its face against religious conduct” because churches cannot reopen until the third stage. He rejected the state’s defense that it “had not acted out of antipathy towards religion,” since the “constitutional benchmark is government neutrality, not government avoidance of bigotry.” As to general applicability, he said the “highly reticulated patchwork [or] amalgam of rules” was the “very antithesis of a generally applicable” law. The state categorically prohibited “in-person religious services—merely because they are religious services,” he said, “even if they follow the same” guidelines as nonreligious entities. “This is, by definition, not a generally applicable regulation.” Applying strict scrutiny, he concluded the church was “highly likely to succeed on the merits of their Free Exercise Clause claim.”

No judge on the panel cited the US DOJ’s May 19, 2020 warning to Newsom to “treat religious activities equally with comparable nonreligious activities” (citing Case #16), President Trump’s May 22, 2020, warning to all governors to treat all houses of worship as “essential,” or the CDC’s reopening guidance issued on May 22, 2020, for FBOs. The church appealed to the US Supreme Court. See Case #30.

Case #27: First Pentecostal Church v. City of Holly Springs, Miss. (Fifth Circuit (three-judge panel) May 22, 2020)

On May 22, 2020, a unanimous panel of the US Court of Appeals for the Fifth Circuit (covering Texas, Louisiana, Mississippi) treated the delay by Judge Michael Mills in Case #19 as a “denial of an injunction implied from [his choice] not to rule in an expedited fashion.” The panel included Circuit Judges Patrick Higginbotham, Leslie Southwick, and Don Willett.

In a one-page order, the panel reversed and issued an injunction protecting the church from the city’s orders until Judge Mills could rule on the merits of the case. Meanwhile, the church agreed to satisfy “the requirements entitling similarly situated businesses and operations to reopen.”

The panel’s issuance of an injunction necessarily meant it saw potential success for the church. But the panel did not discuss the merits of the case or the tragic events after Judge Mills’s Case #19 decision, when an arsonist destroyed the church’s building. In a concurring opinion, Circuit Judge Willett discussed both issues:

The [Church] was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet you Stay home Now YOU HYPOKRITS.” . . . One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime’s depravity, the City seized advantage . . . . [When the congregants] leave their homes on Sundays, they are not going to church; they are the church. The church is not the building. . . . I concur in [granting] injunctive relief. Singling out houses of worship—and only houses of worship, it seems—cannot possibly be squared with the First Amendment. Given the Church’s pledge “to incorporate the public health guidelines applicable to other entities,” why can its members be trusted to adhere to social-distancing in a secular setting (a gym) but not in a sacred one (a church)? Their sanctuary may be destroyed (for now), but when congregants congregate this Sunday . . . they will come together knowing that a church is not a building you go to but a family you belong to.

Author’s Note: While the terse orders in Cases #22, #26, and #27 add little guidance, they forecast how those panels may eventually rule. They also create more conflict among circuits and between the judiciary and President Trump, pushing these cases toward the Supreme Court—which granted review of Cases #22 and #26. See Cases #29 and #30 below regarding how the Supreme Court ruled.

Case #28: Lawrence v. Colorado (D.Colo. (Tenth Circuit) April 19, 2020)

In an April 19, 2020, decision—made available in legal databases only in late May—US District Judge Daniel Domenico denied TRO relief to a pro se plaintiff Michael Lawrence from Colorado’s stay-at-home orders. “The main focus of Mr. Lawrence’s legal complaints is on his inability to attend Mass in person, and the attendant inability to take Communion and otherwise participate in the ceremonies and communal celebration of his religion.”

Colorado has no RFRA, but it did not matter here. Judge Domenico cited Cases #1, #3, and #5 and the Jacobson/Abbott standard, but dismissed the Free Exercise claim mainly for other reasons.

First, the injury was caused not by the stay-at-home orders but by the earlier decision of “Catholic bishops . . . that they were canceling in-person Mass.” Thus, “an injunction against those orders would not force the Church to provide public Mass and Communion.” Second, the requested remedy was too broad. “Mr. Lawrence seeks a sweeping injunction that bars enforcement of [the orders] in their entirety, rather than discrete aspects of the orders, such as those challenged in cases like” Case #1 and Case #5.

Case #29: Elim Romanian Pentecostal v. Pritzker (US Supreme Court May 29, 2020)

Late on May 29, 2020, the US Supreme Court refused to intervene in Case #22. All nine justices participated, including Chief Justice John Roberts and, in order of seniority, Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanagh. The Court’s unanimous order provides, in its entirety:

The application for injunctive relief presented to Justice Kavanaugh and by him referred to the Court is denied. The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.

Thus, without saying so explicitly, the Court seemed to agree with Illinois Governor J.B. Pritzker’s main arguments. First, the restrictions the church was appealing were scheduled to end this very day, thus rendering the case moot (for now). Second, the test for obtaining emergency relief in this preliminary litigation posture, especially where that relief would have a nationwide effect in a rapidly changing crisis, was virtually unreachable for the church.

The church argued that Pritzker, who did not loosen restrictions until he was summoned to the Supreme Court, could just as easily impose new restrictions. The Court seemed to deal with that argument by allowing the church to file “a new motion . . . if circumstances warrant.”

Case #30: South Bay United Pentecostal Church v. Newsom (US Supreme Court May 29, 2020)

Editor’s Note: Church Law & Tax Senior Editor Richard R. Hammar also examined the US Supreme Court’s decision in South Bay United Pentecostal Church v. Newsom , and provides takeaways for church leaders in this article.

Also on May 29, 2020, hours after its decision in Case #29, the US Supreme Court also refused to intervene in Case #26. At issue now were California’s newly relaxed restrictions on places of worship that limited “worship services to 25% of building capacity or 100 attendees, whichever is lower.” Unlike Case #29, this time the Court was divided and had more to say.

In one sense, the Court’s order was even shorter, running just one sentence: “The application for injunctive relief presented to Justice Kagan and by her referred to the Court is denied.” Five justices agreed with this result, making it the official action of the Court. Without any stated rationale, this result provides uncertain guidance, though it may encourage lower courts in other cases to reject church requests for emergency relief.

More telling than the result were the opinions issued by two justices. Chief Justice Roberts filed a concurring opinion, explaining why he joined the majority (Justices Ginsburg, Breyer, Sotomayor, and Kagan). Justice Kavanaugh filed a dissenting opinion, joined by Justices Thomas and Gorsuch. Justice Alito also dissented but did not file or join an opinion.

In his two-page concurring opinion, Chief Justice Roberts noted the extremely difficult test to justify the injunctive relief sought by the church, including proving its rights are “indisputably clear” (essentially obvious and irrefutable). Then he framed the issue as one principally entrusted to the “politically accountable officials of the States” and not to the “unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” That is “especially true,” he said, “where, as here, a party seeks emergency relief . . . while local officials are actively shaping their response to changing facts on the ground.” He briefly addressed the Free Exercise Clause claim, suggesting worship services are more akin to “lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time,” than to “operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” Thus, it “seems quite improbable,” he concluded, that the “unconstitutional[ity]” of the state’s limitations could be “indisputably clear” at this preliminary stage of litigation.

In a three-page opinion, Justice Kavanaugh vigorously disagreed. After quoting extensively from, and effectively adopting, the rationale of the Sixth Circuit in Case #16, he concluded:

The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion. In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment.

Author’s Note: The four justices who joined Chief Justice Roberts in the majority gave no indication of their views, which are impossible to predict. The views of all justices are nuanced and cautious of how their votes and rationales in one case can affect so many others.

Case #31: Bullock v. Carney (D.Del. (Third Circuit) May 29, 2020)

On May 30, 2020, US District Judge Colm Connolly denied a TRO sought by Pastor Christopher Bullock of Canaan Baptist Church against Delaware Governor John Carney. Delaware has no RFRA, but it did not matter for this TRO, which the judge rejected on procedural grounds.

As elsewhere, pandemic-related orders have been fluid in Delaware, with constant changes. When Pastor Bullock filed this lawsuit, he claimed Delaware guidance prohibited persons over age 65 from attending religious services, barred the use of choirs, microphones, and person-to-person Communion, and limited religious services to 60 minutes once per week. Before the judge could rule, however, all these restrictions were replaced with more lenient ones.

Even so, the new guidance contained “numerous mandatory provisions,” the judge said. For example, it still “prohibits communal receptacles for congregants to bless themselves with holy water, [the] use of ushers to collect contributions, [and] the holding of persons during their baptism.” It also “requires preachers to wear a face covering or face shield when they preach unless doing so would imperil their health, in which case they must preach facing away from the congregation.” And it “imposes requirements such as glove wearing and handwashing on individuals who prepare or distribute consecrated or blessed food.”

Judge Connolly denied the TRO for two reasons. First, he said the new guidance was actually less burdensome on Pastor Bullock than the TRO he requested—which would “limit, not expand [his] freedom to exercise his religion.” Second, the judge said Pastor Bullock had failed to show he would be irreparably harmed without the TRO. Nothing “submitted by Dr. Bullock [shows that his] church intended to serve communion or hold a baptism this coming Sunday, [or that he] would be irreparably harmed if required to preach this Sunday wearing a mask.”

The judge emphasized that his decision here was preliminary and “has no bearing on the merits of Dr. Bullock’s claims [which] implicate one of our most treasured rights protected by the Constitution—the right to exercise freely one’s religion.”

(The denial of the TRO here was later affirmed on appeal by the Third Circuit in Case #33.)

Case #32: Calvary Chapel Dayton Valley v. Sisolak (D.Nev. (Ninth Circuit) May 30, 2020)

On May 30, 2020, Miranda Du, Chief Judge for the US District Court for Nevada, denied a church’s second request to consider its motion for a TRO in time for Pentecost Sunday.

The church was seeking relief from Governor Steve Sisolak’s phased reopening plan that precluded its planned worship services. “Waiting until one business day before Pentecost Sunday to ask for emergency relief is simply unreasonable,” Judge Du wrote in her original order. Now, seeking reconsideration of that order, the church said its delay in filing its emergency motion was due to progress in recent discussions between religious leaders, including the church’s pastor, and the governor. It argued that it had “exercised diligence in trying to resolve its dispute before bringing the Motion.”

The judge rejected this argument for two reasons. First, it was inappropriate to raise a new argument in a request for reconsideration. Second, the new argument failed to persuade the judge in any event. Noting that the restrictions the church was challenging “have been in place for weeks,” she said that, by waiting “until one business day before Pentecost Sunday to file” its motion, the church “put Defendants and the Court in the untenable position of having essentially no time to address the Motion on the merits.”

Case #33: Bullock v. Carney (Third Circuit (three-judge panel) May 30, 2020)

On May 30, 2020, the US Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey, and Delaware) reviewed the decision of US District Judge Colm Connolly in Case #31, which refused relief sought by Pastor Christopher Bullock against Delaware Governor John Carney. The Third Circuit panel, including Circuit Judges Theodore McKee, Patty Shwartz, and Peter Phipps, joined the Seventh Circuit (Case #22) and Ninth Circuit (Case #26) in ruling against churches. The panel majority here issued only a one-sentence order affirming denial of the TRO, but Circuit Judge Phipps filed a dissenting opinion. Neither the majority nor the dissent cited the US Supreme Court’s orders from the prior night in Cases #29 or #30.

In his dissenting opinion, Judge Phipps relied solely on Smith and Lukumi, the Supreme Court’s main Free Exercise precedents in these cases. Like the judges in Cases #1, #5, #9, #13, #16, #21, and dissenting judges in Cases #26 and #30, Judge Phipps found the state’s actions to fail both neutrality and general applicability.

He also relied on a “hybrid-rights” theory. This theory, endorsed by several circuits, is based on Smith’s discussion of an exception to the neutrality/general applicability framework. It says strict scrutiny applies to “hybrid” situations where Free Exercise rights are combined with other constitutional rights, such as Free Speech. Judge Phipps explained:

This case presents a hybrid situation. Reverend Bullock does not bring a free exercise claim in isolation, but rather he also challenges a restriction on a communicative element of that freedom. Specifically, he disputes limitations on gathering size, preaching, baptism, and communion. And in any event, because these restrictions govern churches specifically, they do not act as neutral and generally applicable regulations. Accordingly, to be constitutional, the Governor’s order must survive strict scrutiny. . . . [Here,] a reasonable probability exists that the Governor will not be able to demonstrate that the challenged restrictions on churches are narrowly tailored to accomplishing [his] goal.

Judge Phipps then analyzed the restrictions under these headings: (a) Capacity Restrictions on Congregations; (b) Restrictions on Communicating with the Congregation; (c) Restrictions on Baptism; and (d) Regulation of Receipt of Communion. Each one failed the narrow tailoring of strict scrutiny, in his view.

Author’s Note: Few circuits have accepted the hybrid theory as it renders the Free Exercise Clause superfluous: it provides strict scrutiny for Free Exercise only when it’s combined with another constitutional right (which, by itself, normally requires strict scrutiny). A similar criticism from scholarly commentary on some of these cases—including Chief Justice Roberts’s concurring opinion in Case #30—is that insufficient attention is given to the Free Exercise Clause, which provides explicit constitutional protection for religious exercise that is not available for secular activities.

Case #34: Calvary Chapel v. Mills (First Circuit (three-judge panel) June 2, 2020)

On June 2, 2020, the US Court of Appeals for the First Circuit (covering Massachusetts, Rhode Island, New Hampshire, and Maine) reviewed the decision of US District Judge Nancy Torresen in Case #15, which refused a TRO against Maine Governor Janet Mills. The First Circuit panel included Chief Judge Jeffrey Howard and Circuit Judges Juan Torruella and Ojetta Thompson. In a single sentence, the panel denied an injunction pending appeal based upon its “careful review of the papers and arguments of the parties.” It provided no other rationale.

This denial of emergency relief, as in most other cases in this article, is not a final ruling on the merits of the case. But it may forecast how the court eventually will rule. With this decision, the First Circuit has joined the Seventh Circuit (Case #22), Ninth Circuit (Case #26), and Third Circuit (Case #33) in denying relief to churches. Only the Sixth Circuit (Cases #9 and #16) and the Fifth Circuit (Case #27) have granted such relief to churches.

Case #35: Abiding Place Ministries v. Newsom (S.D.Cal. (Ninth Circuit) June 4, 2020)

On June 4, 2020, US District Judge Cynthia Bashant—whose denial of relief to a different church was allowed by the Ninth Circuit in Case #26 and by the US Supreme Court in Case #30—denied injunctive relief to the church in this case. She refused to pass judgment on outdated (superseded) orders of California Governor Gavin Newsom and local officials. It appeared that new, looser restrictions rendered the legal challenge moot (pointless).

Here, Abiding Place Ministries challenged state guidelines that appeared to criminalize the planned activities of the church and its less-than-100 congregants to “assemble away from the general public in the open air on a large, private ranch” while following CDC guidelines. Judge Bashant said that the new guidelines would “allow Plaintiff’s congregation (of less than 100 persons) to meet as long as certain CDC guidelines are followed.” Noting these “most recent guidelines supersede any prior orders,” she said this status change was “enough to render [the] case moot,” even if the government can reenact the restrictions “after the lawsuit is dismissed.”

Case #36: Christian Cathedral v. Pan (N.D.Cal. (Ninth Circuit) June 6, 2020)

On June 6, 2020, US District Judge Charles Breyer denied a California church’s TRO request against county health official Erica Pan. The church was seeking relief from an “order which allows school graduation ceremonies of up to 25 persons but does not allow religious worship services held with identical numbers and health protocols.” In framing the case, the judge characterized Dr. Pan’s actions as an attempt “to clarify the (unfortunately) ambiguous original guidelines” and the church’s pro se case (without a lawyer) as lacking evidence.

On the merits of the case, Judge Breyer said the church’s constitutional claims of differential treatment depended “on its contention that Alameda County allows in-person graduation ceremonies which comply with certain strict safety protocols, but not in-person worship services that comply with identical requirements.” The church was attempting to compare guidelines that applied to the in-person graduation ceremonies of its K-12 school with guidelines that applied to its worship services. But the judge said the church misinterpreted the graduation guidelines, which allowed only outdoor ceremonies. Thus, “the proposed graduation ceremony and worship services were prohibited for the same reason: because they were to be held indoors.”

Finding no other evidence of unconstitutional discrimination, Judge Breyer denied TRO relief because “the current record does not adequately support Christian Cathedral’s crucial factual allegation that Alameda County treats graduation ceremonies and worship services differently.” He emphasized the “demanding standard” for such emergency relief and noted the church was free to file “a later motion for a preliminary injunction based on a more adequate record.”

Author’s Note: With this case, judges in all four federal judicial districts in California have now denied emergency relief to churches. See Cases #6, #11, and #35. All these district judges fall within the jurisdiction of the Ninth Circuit and their decisions appear consistent with the precedent of that Circuit Court in Case #26, which the US Supreme Court upheld in Case #30.

Case #37: Calvary Chapel Dayton Valley v. Sisolak (D.Nev. (Ninth Circuit) June 11, 2020)

On June 11, 2020, US District Judge Richard Boulware denied TRO relief to a Nevada church against Governor Steve Sisolak’s 50-person cap on gatherings. This decision followed the refusal of Chief Judge Miranda Du in Case #32 to decide the church’s last-minute request before Pentecost Sunday. This case, like nearly all others, turned on the Free Exercise Clause.

Judge Boulware quoted extensively from the concurring opinion of Chief Justice Roberts in Case #30 without acknowledging that it was the opinion solely of Roberts and not the whole Supreme Court (as no other justice joined it). Adopting the Chief Justice’s guidance, Judge Boulware found the governor’s directive neutral and generally applicable, both on its face and as applied.

In its “facial” challenge to the directive, the church compared its services to “comparable activity in which people gather in large groups and remain in close proximity for large periods of time, including casinos, restaurants, nail salons, massage centers, bars, gyms, bowling alleys and arcades, all of which are allowed to operate at 50% of official fire code capacity.” Per Judge Boulware, however, all these activities were subject to equal or worse restrictions than church services. “Thus, even if the Court were to accept casinos as the nearest point of comparison for its analysis of similar activities and their related restrictions imposed by the Governor, the Court would nonetheless find that casinos are subject to much greater restrictions on their operations and oversight of their entire operations than places of worship.”

The judge conceded some differential treatment but found it inconsequential. “Given that there are some secular activities comparable to in-person church services that are subject to more lenient restrictions, and yet other activities arguably comparable to in-person church services that are subject to more stringent restrictions, the Court cannot find that the Emergency Directive is an implicit or explicit attempt to specifically target places of worship.”

In its “as applied” challenge, the church claimed “selective enforcement” of the directive based on photographs of outdoor protests and indoor casino activity that appeared to freely violate the social distancing guidelines and 50-person cap. Judge Boulware was unconvinced. First, he found that outdoor protest was quite different in terms of its ability to be regulated, and in terms of the concerns of law enforcers who said attempts to regulate outdoor protests may do more harm than good. Second, he found the claim “premature,” as there was no evidence of a “pattern” of selective enforcement. To the contrary, the judge noted, the sheriff indicated he “has no intention of using limited . . . resources to enforce the directive against Calvary or other places of worship,” and “Calvary has presented no evidence indicating that it has been subject to actual enforcement.” The judge said that, if the church develops “evidence of selective enforcement,” it could return to court.

Case #38: Elkhorn Baptist Church v. Brown (Oregon Supreme Court June 12, 2020)

On June 12, 2020, the Supreme Court of Oregon issued the first state court decision included in this article. The court was reviewing a state trial court injunction against the pandemic orders of Governor Katherine Brown. The trial court ruled that the governor’s orders exceeded “a statutory time limit.” The state supreme court reversed. Relying on the concurring opinion of Chief Justice Roberts in Case #30, the court said, “the safety and health of the people is principally entrusted to the states’ political leaders,” whose latitude during the pandemic “must be especially broad.”

Although the church “focused primarily on the idea that the Governor’s executive orders have expired and, therefore, are null and void,” the church “also argued that the orders violate their state constitutional right to freely exercise their religion.” The state supreme court rejected this argument on procedural grounds, saying the church failed to properly raise the argument in the trial court. But in a footnote the court suggested the argument would fail anyway, because “it is well established under both the First Amendment’s Free Exercise Clause and Article I, sections 2 and 3 of the Oregon Constitution that a regulation can affect a person’s exercise of their religion without violating those provisions.” The court indicated that the governor’s pandemic orders were precisely such regulations, again citing Chief Justice Roberts in Case #30.

Author’s Note: State courts are bound by the federal constitution and must address any federal constitutional issues properly raised in state litigation. But on all such federal issues, state courts look to federal court precedent and are bound by US Supreme Court precedent.

Case #39: High Plains Harvest Church v. Polis (D.Colo. (Tenth Circuit) June 16, 2020)

On June 16, 2020, US District Judge Raymond Moore denied TRO relief to a Colorado church against Governor Jared Polis’s 50-person cap on gatherings. Per Judge Moore, the church plaintiffs voluntarily withdrew their complaint after the US Supreme Court in Case #30 denied similar “relief in a case substantially similar to theirs.” But after “thousands of people began to gather in Denver and other cities in Colorado to protest police violence,” the church filed an amended complaint alleging the state “permitted and encouraged these protest gatherings while continuing to impose draconian restrictions on religious gatherings.” Continuing a trend, this case relied heavily on the concurring opinion of Chief Justice Roberts in Case #30.

Judge Moore rejected this argument for several reasons. First, he saw no evidence that “outdoor protests” were “comparable secular gatherings” to “indoor, in-person church services.” Second, he rejected the bare assertion that “from an epidemiological perspective, the protests were far more intense than any religious service.” Third, he was not persuaded that failure of the state to enforce “social distancing during a protest” meant the state was “engaged in a variety of constitutional misconduct directed at religious institutions.” Fourth, he saw no evidence that the state “permitted or encouraged the protests,” but he said he would consider such evidence if the church provided it.

Case #40: Taylor v. Grisham (D.N.M. (Tenth Circuit) June 16, 2020)

On June 16, 2020, US Magistrate Jerry Ritter, as assigned by US District Judge James Browning (see Case #3), proposed a resolution against pro se (representing himself) plaintiff Leland Taylor. Taylor challenged two orders of New Mexico Governor Michelle Lujan Grisham for denying “him and other citizens of New Mexico the right to free assembly and worship.”

One order provided early release of inmates who met certain conditions. The other one extended a series of prior pandemic orders governing the general public. It is not clear why Taylor challenged the order governing inmates. What is clear is that Taylor made many procedural errors and failed to correct them even after instructed by the judge, a common occurrence whenever plaintiffs represent themselves.

Before rejecting the Free Exercise claim, Judge Ritter tried to make sense of it, and set out the Smith/Lukumi standard. But he could find no plausible constitutional claim, since neither order appeared to restrict religious practices and Taylor never articulated how they “burden his religious practices.” Judge Ritter said there might possibly be a plausible claim against the mass gathering restrictions if Taylor had named the proper state official as a defendant. The judge drew the line there, citing precedent that, “while pro se pleadings are liberally construed, courts will not make arguments for pro se litigants or otherwise advocate on their behalf.”

Case #41: Elim Romanian Pentecostal v. Pritzker (Seventh Circuit (three-judge panel) June 16, 2020)

On June 16, 2020, the US Court of Appeals for the Seventh Circuit issued a second unanimous decision by the same panel. In Case #22, the panel refused the church’s request for an injunction pending appeal against Illinois Governor J.B. Pritzker. In Case #29, the US Supreme Court did likewise, suggesting the church’s request was moot (pointless) because Pritzker had removed the restrictions the church was challenging. Now it was time for the panel to decide the appeal. Its well-reasoned decision here is a blow to all churches challenging pandemic orders.

Initially, the panel addressed three preliminary issues that control many of these cases. First, it considered whether the governor’s removal of restrictions “makes this suit moot, because it gives the churches all of the relief they wanted from a judge.” The new guidelines contain a long list of “recommendations but do not impose any legal obligation,” the panel conceded. But voluntarily ceasing challenged “conduct makes litigation moot only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Since the governor’s “criteria for moving back to Phase 2” shows how easily he could reimpose the restrictions, the panel said it must address the merits of the challenge to the prior order “even though it is no longer in effect.”

Second, the panel conceded the US Supreme Court appeared ready to consider whether to overrule its controversial Smith decision (in a separate case, Fulton v. City of Philadelphia, which will go before the Court during its next term). In the meantime: “Unless the Justices overrule or modify Smith, we must implement its approach.” The panel thus followed the Smith/Lukumi standard.

Third, the panel conceded that the federal and Illinois RFRAs provided greater statutory protection for religious freedom than the constitutional protection provided by Smith. But the panel noted that the federal RFRA did not apply to states (due to a 1997 US Supreme Court case), and that the state RFRA could not be used in federal court (since Illinois never clearly consented to litigate its state RFRA in federal court, rather than state court). “As a result, neither the federal nor the state [RFRA] can be applied in this case,” the panel said.

The panel then turned to the “vital” constitutional question of whether the order “discriminates against religion.” The key issue, it said, was choosing the right secular “comparison group” to determine if religious groups were treated more harshly. “So what is the right comparison group: grocery shopping, warehouses, and soup kitchens, as plaintiffs contend, or concerts and lectures, as Illinois maintains?” Citing Cases #9, #16, #26, and #30, the panel noted that judges of the US Supreme Court and circuit courts “have supported both comparisons.”

Acknowledging that precedent ran in both directions, the panel said it chose to “line up with Chief Justice Roberts” and his “concurring . . . observations” in Case #30, including the differences between activities where “large groups of people gather in close proximity for extended periods of time” and activities where “people neither congregate in large groups nor remain in close proximity for extended periods.”

It was a close case, in the panel’s view. “It would be foolish to pretend that worship services are exactly like any of the possible comparisons, but they seem most like other congregate functions that occur in auditoriums, such as concerts and movies.” The panel conceded that workers may “remain together for extended periods in warehouses [and] office settings,” but noted that such workers may not “engage in the sort of speech or singing that elevates the risk of transmitting the virus” or “remain close to one another for extended periods.” The panel also conceded that “some workplaces present both risks,” including “meatpacking plants and nursing homes,” both of which “have been centers of COVID-19 outbreaks.”

In the end, the panel had to choose sides, and its following rationale proved pivotal:

[It] is hard to see how food production, care for the elderly, or the distribution of vital goods through warehouses could be halted. Reducing the rate of transmission would not be much use if people starved or could not get medicine. That’s also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet. Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.

The panel sided with the state. “Perhaps with more time—and more data from contact tracing—Illinois could figure out just how dangerous religious services are compared with warehouses and similar activities, but no one contends that such data were available when Executive Order 2020-32 was promulgated (or, for that matter, now).” The panel concluded:

[W]arehouse workers and people who assist the poor or elderly may be at much the same risk as people who gather for large, in-person religious worship. Still, movies and concerts seem a better comparison group, and by that standard the discrimination has been in favor of religion. While all theaters and concert halls in Illinois have been closed since mid-March, sanctuaries and other houses of worship were open, though to smaller gatherings. And under [the governor’s order,] all arrangements for worship are permitted while schools, theaters, and auditoriums remain closed. Illinois has not discriminated against religion and so has not violated the First Amendment, as Smith understands [it].

Case #42: Spell v. Edwards (Fifth Circuit (three-judge panel) June 18, 2020)

On June 18, 2020, the US Court of Appeals for the Fifth Circuit (covering Texas, Louisiana, Mississippi) issued its second decision. In Case #27, a panel granted relief to a Mississippi church while it awaited the district judge’s ruling in Case #19. Here, a different panel—Circuit Judges Jerry Smith, Gregg Costa, and James Ho—dismissed as moot (pointless) the appeal of Pastor Mark Spell against Louisiana Governor John Bel Edwards.

Previously, in Case #20, US District Judge Brian Jackson noted the potential mootness of Pastor Spell’s case while issuing a decision on the merits, denying the request for a TRO. In this appeal, the panel said Judge Jackson should have dismissed the lawsuit and never reached the merits. Thus, the panel “erased” Case #20. “[B]ecause the appeal became moot before appellate review, the district court’s order denying preliminary relief is VACATED.”

Mootness is decisive in many of these church cases and it depends on facts and nuance. While cases such as Case #41 rejected mootness, the panel here accepted it:

A Louisiana church and its pastor ask us to enjoin stay-at-home orders restricting in-person church services to ten congregants. But there is nothing for us to enjoin. The challenged orders expired more than a month ago. That means this appeal and the related request for an injunction . . . are moot.

The facts dictated the outcome, in the panel’s view. Since the Louisiana order expired “by its own terms,” its “lapse was predetermined and not a response to” this litigation. Moreover, Pastor Spell failed “to establish that the Governor might reimpose another gathering restriction on places of worship.” To the contrary, the panel noted, the “trend in Louisiana has been to reopen the state, not to close it down.” Thus, “it is speculative, at best, that the Governor might reimpose the ten-person restriction or a similar one.”

Circuit Judge James Ho agreed the case was moot, but wrote a concurring opinion to offer some observations in light of recent nationwide protests against police:

In recent weeks, officials have not only tolerated protests—they have encouraged them as necessary and important expressions of outrage over abuses of government power. For people of faith demoralized by coercive shutdown policies, that raises a question: If officials are now exempting protesters, how can they justify continuing to restrict worshippers? The answer is that they can’t. Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are “open” and which remain “closed.”

Judge Ho also agreed with the views of Judge Collins in Case #26 about key US Supreme Court precedent. Judge Ho agreed that “[n]othing in Jacobson supports the view that an emergency displaces normal constitutional standards,” such as Smith, and that Smith had limits. “Smith does not cover laws that grant exemptions to some, while denying them to people of faith. Religious liberty deserves better than that—even under Smith.” Judge Ho went further:

Smith has been derided by “civil rights leaders and scholars as the Dred Scott of First Amendment law,” criticized by “at least ten members of the Supreme Court,” and “widely panned as contrary to the Free Exercise Clause and our Founders’ belief in religion as a cornerstone of civil society.” Smith is troubling because it is of “little solace to the person of faith that a non-believer might be equally inconvenienced. . . . For it is the person of faith whose faith is uniquely burdened—the non-believer, by definition, suffers no such crisis of conscience.” (Citations and internal punctuation omitted.)

Case #43: Ramsek v. Beshear (E.D.Ky. (Sixth Circuit) June 24, 2020)

On June 24, 2020, US District Judge Gregory Van Tatenhove issued his third decision in these cases. See Cases #13 and #24. They all involve the same mass-gathering ban of Kentucky Governor Andy Beshear at issue in many of these cases. This time, the judge analyzed the ban not in the context of religious challenges but in the context of peaceful nonreligious protests against the governor’s pandemic orders. He ruled that a “blanket prohibition on gathering in large groups to express constitutionally protected speech is unconstitutional.”

This case is vital to this article for one reason. It is the first to fully analyze the concurring opinion of US Supreme Court Chief Justice John Roberts in Case #30. If that opinion is given too much weight, it sharply undercuts all churches in these cases. Indeed, churches have not won a single victory since that opinion was issued. In this case, the judge criticized other judges for according “significant weight to Justice Roberts’ concurring opinion, without any extended analysis of the precedential considerations,” alluding to Case #37 as an example.

According to the governor, Justice Roberts’s opinion rejected the Sixth Circuit’s otherwise binding precedent in Cases #9 and #16, which invalidated Kentucky’s mass-gathering ban as applied to church services. But, for the reasons below, Judge Van Tatenhove said this argument “demands too much of the preliminary views of one Justice.”

First, the judge noted the nascent posture of Case #30, where the Supreme Court could only glance at the merits of the case. He analogized the Court’s refusal of the church’s request for emergency relief to the Court’s routine refusals to accept appeals. The Court refuses 99 percent of all appeals, usually without comment but sometimes with a concurring or dissenting opinion of one or more justices. Such refusals of appeals have no precedential value.

Second, the judge noted the heightened burden in Case #30, where the church sought emergency change to the legal status quo on a sparse record. The church had to prove the violation of its constitutional rights was “indisputably clear.” Such a burden far exceeds the burden the church ultimately will bear during the normal course of its litigation. Thus, Justice Roberts’s opinion does not predict his ultimate view of the church’s case after it is fully and properly litigated.

Third, at “the very least,” the judge said, “if the concurring opinion is to be accorded weight, then the fact that no other Justices joined the opinion must be acknowledged.” Since the “other four Justices . . . gave no indication as to the basis for their decisions,” the judge refused “to speculate” they might agree with “Roberts’ basis.” Thus, the judge said, “the grounds set forth by Justice Roberts in support of his decision . . . should be interpreted as narrowly as possible.”

Finally, the judge said Justice Roberts’s opinion did not reject the rationale of Cases #9 and #16 and, as the opinion of a single justice, could not overrule those cases. The judge concluded:

Accordingly, the Court declines to accord too broad of a precedential effect to Justice Roberts’ concurrence in South Bay. A narrow reading is required and simply leads to the conclusion that Justice Roberts found that it was not “indisputably clear” that the California law restricting in-person religious services violated the Free Exercise Clause. While informative, this conclusion does not create precedent which controls in this case.

Case #44: Soos v. Cuomo (N.D.N.Y. (Second Circuit) June 26, 2020)

On June 26, 2020, US District Judge Gary Sharpe granted relief to two Catholic priests (including the Reverend Steven Soos) and three Orthodox Jewish congregants against the orders of New York Governor Andrew Cuomo and Mayor Bill de Blasio, partly due to their better treatment of “race-related protests.” This is the first religious win since Case #27.

Judge Sharpe outlined the many orders and guidance documents issued by the governor and mayor and contrasted their negative statements about religious gatherings with their positive statements about protests. He also listed the burdens on the priests as including a ban on “offering Mass and the other sacraments beyond an ever-changing maximum number of people” and a choice to reject “parishioners who wish to attend Mass—a weekly obligation that Catholics face under pain of mortal sin—or to hold more Masses per day than are possible.” Nor could they hold daily mass for their Catholic school students “when they return to school.”

The state’s accommodations were ineffective, the judge said. Drive-in services were of little value to Catholics, whose religion requires “kneeling while receiving Holy Communion.” And outdoor masses, weddings, and funerals were either forbidden or practically impossible.

The burdens on the Jewish congregants from Brooklyn were similarly onerous and the proffered accommodations similarly ineffective. Judge Sharpe listed many examples, including the forcible dispersal of a small, socially distanced outdoor prayer service. The congregants said they were forced to: miss “many religious services, including during Passover”; endure the constant “presence and interference” and “harassment and surveillance by the police”; face the “fear of arrest”; experience “harassment from community activists”; and, forgo the “tranquility of worship.”

The judge began his legal analysis with Case #30. After quoting its concurring opinion, he said it was “not the judiciary’s role to second guess the likes of Governor Cuomo or Mayor de Blasio when it comes to decisions they make in such troubling times, that is, until those decisions result in the curtailment of fundamental rights without compelling justification.” Citing Smith/Lukumi’s interpretation of the Free Exercise Clause, the judge concluded: “Assuming, without deciding, that the challenged laws are neutral . . . it appears [they] are not generally applicable, and that they would fail strict scrutiny.” The problem was differential treatment, in his view.

Regarding the “25% indoor capacity limitation,” the judge said that, “on its face,” it “applies only to houses of worship.” He emphasized that “no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity.” He listed offices, retail stores, salons, restaurants, and special education among secular activities allowing 50% capacity and looser restrictions. “Restaurant patrons sit and congregate with family and friends in close proximity for a lengthy period of time, and have close contact with their hosts and servers,” even as face “coverings may be removed while seated.”

Regarding the outdoor gathering restrictions, the judge separately analyzed the actions of the governor and the mayor, finding that both had created “de facto” exemptions for protests. The governor, per the judge, was responsible for the actions of the state police, which treated protests differently from religious gatherings. “And in any case, Governor Cuomo’s comments, which applauded and encouraged protesting and discouraged others from violating the outdoor limitations, likely demonstrate the creation of a de facto exemption.”

The mayor, per the judge, “has one of the largest municipal police departments in the world, and has also actively encouraged participation in protests and openly discouraged religious gatherings and threatened religious worshipers.” The mayor’s reliance on Case #37’s “public safety” reason for gentler policing of protests was misplaced, the judge said, due to the mayor’s “simultaneous pro-protest/anti-religious gathering messages, which [undermine] the proffered reason for what seems to be a clear exemption, no matter the reason.” The judge concluded:

Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules. They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment.

The judge also identified a “case of individualized exemption” that “seems even more obvious,” i.e., “outdoor, in-person graduation ceremonies of no more than 150 people.” This “is an express exemption from the ten- or twenty-five-person outdoor limits.” And “there is nothing materially different about a graduation ceremony and a religious gathering such that [the] justifications for a difference in treatment can be found compelling.”

Author’s Note: The US Department of Justice (DOJ) promptly lauded this decision.

Editor’s Note: 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 state RFRAs or other religious freedom laws, 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.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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  • May 12, 2020
  • Last Reviewed: June 29, 2020

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