Key Cases
Courts Reach Mixed Conclusions on Challenges to COVID-19 Assembly Restrictions
Nathan A. Adams IV
Several recent cases concern challenges to executive orders relating to COVID-19 limiting the ability of churches to assemble and imposing other limitations. Beginning with appellate decisions, these cases are summarized in two groups: one group where courts enjoined the executive orders and another group where they did not.
Granting Injunction
In Roberts v. Neace, 958 F. 3d 409 (6th Cir. 2020), the court ruled that congregants of Maryville Baptist Church who wanted to attend in-person worship services were likely to succeed on the merits of their free exercise claim against Kentucky Gov. Andy Beshear and others due to two executive orders that 1) prohibit faith-based mass gatherings and 2) require the closing of organizations that are not "life-sustaining." Likewise, in Maryville Baptist Church, Inc. v. Beshear, 957 F. 3d 610 (6th Cir 2020), the same court ruled that Maryville Baptist Church was likely to succeed on the merits of its action alleging that the same executive orders violated the First Amendment and Kentucky's Religious Freedom Restoration Act (RFRA) as applied to drive-in church services with social distancing. As background, Maryville Baptist Church held an Easter service that the plaintiffs attended while observing social distancing and hygiene requirements. During the service, state police placed "attendance-is-criminal" notices on their car and took down the license plate numbers of attendees. The suit followed. The district court denied the plaintiffs relief. The appellate court reversed, granting them an injunction pending appeal against enforcing the orders if the church, ministers and congregants adhere to public health requirements mandated for life-sustaining entities. The court determined that at some point an exception-ridden prohibition takes on the appearance and reality of a system of individualized exemptions, which is the antithesis of a neutral and generally applicable policy. The orders contained four pages of exceptions for comparable secular activities, implicating strict scrutiny and burdened sincere faith practices, and were not the least restrictive manner of furthering the commonwealth's goals of lessening the spread of the virus and protecting citizens. The court considered it important that the church and its congregants "just want to be treated equally" and were not asking "to insulate themselves from the commonwealth's general public health guidelines." It made little sense to the court that the same accountants, lawyers and laundromat workers could go to work and social distance but not go to worship services and do likewise.
In On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249 (W.D. Ky. April 11, 2020), the court granted a temporary restraining order (TRO) to prevent the City of Louisville from enforcing a prohibition against drive-in Easter services despite the city's compelling interest in preventing the spread of coronavirus, because the church showed a strong likelihood of successes on the merits of its federal and state free exercise claims and its claims under Kentucky's RFRA. The city allowed other non-religious and no-more-essential parking and drive-throughs, including at liquor stores and ice cream shops.
In First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. April 18, 2020), the court ruled that an executive order that singled out churches and religious activities among essential functions for stricter treatment than similar secular activities and religious gatherings did not appear to pose unique risks that could not be mitigated with safety protocols.
In Berean Baptist Church v. Cooper, No. 4:20-CV-81-D, 2020 WL 2514313 (E.D. N.C. May 16, 2020), the court forbade law enforcement from taking any enforcement action against the plaintiffs or any other worshipers pursuant to North Carolina Gov. Roy Cooper's executive order requiring that all worship services involving more than 10 people be held "outdoors unless impossible" pending final hearing. According to the governor, law enforcement would decide whether it is impossible. Guidance from the governor stated, "In situations where it is not possible to conduct worship services outdoors or through other accommodations - such as through, for example a series of indoor services of ten or fewer attendees or through on-line services - the ten-person attendance limit on indoor worship services does not apply. For example, there may be situations where particular religious beliefs dictate that some or all of a religious service must be held indoors and that more than ten persons must be in attendance." According to the court, law enforcement would also decide whether a religious group correctly determined that its religious beliefs dictated the need to have more than 10 people inside to worship. Opining about what "impossibility" meant for non-religious entities, the governor's counsel said it would be impossible to enforce the 10-person limit on grocery stores, airports, medical facilities and home improvement stores but not so for the church. The counsel also conceded there was not a public health rationale for allowing 50 people to gather inside at a funeral but no more than 10 for indoor worship. The court ruled that...
