Solid Rock Baptist Church v. Murphy

480 F.Supp.3d 585

SOLID ROCK BAPTIST CHURCH; Bible Baptist Church of Clementon ; Andrew Reese; Charles Clark, Jr. ; and Charles Clark III, Plaintiffs,

v.Philip D. MURPHY, Governor of the State of New Jersey; Gurbir S. Grewal, Attorney General of the State of New Jersey; Patrick J. Callahan, Superintendent of State Police and State Director of Emergency Management, Defendants.

Civ. No. 20-6805(RMB/JS)

United States District Court, D. New Jersey, Camden Vicinage.

Signed August 20, 2020

REILLY, McDEVITT & HEINRICH, P.C., By: Brian Tome, Esq., 3 Executive Campus, Suite 310, Cherry Hill, New Jersey 08002, ZIMOLONG, LLC, By: Walter Stephen Zimolong III, Esq., P.O. Box 552, Villanova, Pennsylvania 19085, GIBBS & ASSOCIATES LAW FIRM, LLC, By: David C. Gibbs, Esq.; Seth J. Kraus, Esq. ; Jonathan D. Gibbs, Esq., 6398 Thornberry Court, Mason, Ohio 45040, Counsel for Plaintiffs Solid Rock Baptist Church, Bible Baptist Church of Clementon, Andrew Reese, Charles Clark, Jr., and Charles Clark III.

OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, By: Jeremy M. Feigenbaum, Assistant Attorney General; Daniel M. Vannella, Assistant Attorney General; and Michael C. Walters, Assistant Attorney General, R.J. Hughes Justice Complex, 25 Market Street, P.O. Box 116, Trenton, New Jersey 08625, Counsel for Defendants Governor Philip D. Murphy, Attorney General Gurbir S. Grewal, and Colonel Patrick J. Callahan.

[Dkt. No. 12]

RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE:

The United States Pledge of Allegiance speaks of "one Nation under God, indivisible, with liberty and justice for all," 4 U.S.C. § 4. In the State of New Jersey, however, those who wish to pray to God in their houses of worship, must be divided. Faced with a global pandemic of biblical proportions, Governor Phil Murphy has promulgated various emergency executive orders imposing attendance restrictions on large indoor gatherings, including religious services. As of the time of this Opinion, a place of worship is limited to 25-percent capacity, with attendance never to exceed 100 persons, regardless of sanctuary size, for indoor religious services.

Plaintiffs bring this suit against Defendants New Jersey Governor Philip D. Murphy, New Jersey Attorney General Gurbir S. Grewal, and the New Jersey Superintendent of State Police and State Director of Emergency Management, Colonel Patrick J. Callahan (collectively, the "State" or "Defendants"). This matter now comes before the Court upon Plaintiffs’ Emergency Motion for a Preliminary Injunction ("PI Motion")[Dkt. No. 12]. Invoking the U.S. Constitution, the New Jersey Constitution, and their deep faith in a religious obligation to gather for worship,¹ Plaintiffs challenge the Governor's Executive Orders and seek an order allowing them to "continue [their] in-person, indoor church services with more than 10 people while practicing adequate social distancing and following all relevant safety guidelines." [PI Motion, at 18].

The Court finds that the portion of Plaintiffs’ motion seeking permission to hold gatherings of more than 10 people has been, in effect, granted through the enactment of Executive Order No. 156. At this juncture, the remaining aspects of Plaintiffs’ motion will be denied without prejudice. The Court will, however, allow Plaintiffs to amend their complaint if so desired.

I. FACTUAL BACKGROUND

A. Executive Orders on Gatherings

On March 9, 2020, Governor Murphy issued Executive Order No. 103 ("EO 103"), declaring a State of Emergency and Public Health Emergency based on the dangers posed by the spread of the Coronavirus Disease 2019 ("COVID-19").² In EO 103, Governor Murphy authorized Colonel Patrick Callahan to "take any such emergency measures as the State Director may determine necessary" to protect New Jersey citizens from exposure to COVID-19. Since March, the State of New Jersey has experienced over 185,000 confirmed cases of COVID-19, contributing to almost 16,000 deaths.³

As COVID-19 spread around throughout New Jersey, Governor Murphy promulgated new emergency orders in relation to COVID-19. On March 16, 2020, Governor Murphy issued Executive Order No. 104 ("EO 104"), which limited all gatherings to "50 persons or fewer," with exceptions for various categories of businesses deemed "essential."⁴ This directive, however, excluded "normal operations at airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or the purchase of groceries or consumer goods." EO 104, ¶ 1.

On March 21, 2020, Governor Murphy issued Executive Order No. 107 ("EO 107"), which canceled all "gatherings of individuals" and ordered all New Jersey residents to "remain home or at their place of residence," unless for approved reasons, such as "leaving the home for an "educational, religious, or political reason." Under EO 107, essential retail businesses could remain open, but were required to "abide by social distancing practices to the extent practicable while providing essential services." EO 107 further instructed that essential businesses were required to make "all reasonable efforts to keep customers six feet apart and frequent use of sanitizing products on common surfaces." EO 107, ¶ 7.

The provision in EO 107 cancelling all "gatherings of individuals" also granted the State Director of Emergency Management "the discretion to make clarifications and issue orders related to this provision." Apparently in coordination with the Governor's order, later that same day, March 21, 2020, Colonel Callahan issued Administrative Order No. 2020-4 (AO 2020-4), which "clarified that gatherings of 10 persons or fewer are presumed to be in compliance with the terms and intentions of [EO 107], unless clear evidence exists to the contrary." Governor Murphy formalized Colonel Callahan's interpretation in Executive Order No. 142 ("EO 142"), issued on May 13, 2020, which stated that "gatherings of 10 persons or fewer are in compliance with the terms of [EO 107], while gatherings of more than 10 persons are in violation of that Executive Order."

The executive orders did not draw a distinction between indoor and outdoor gatherings until May 22, 2020, when Governor Murphy issued Executive Order No. 148 ("EO 148"). In that order, Governor Murphy instructed that indoor gatherings would continue to be limited to "10 persons or fewer," but allowed for outdoor gatherings with "no more than 25 people at the same time."

While EO 148 remained in effect, from late May through early June 2020, cities in New Jersey saw massive protests in the aftermath of George Floyd's death in Minneapolis, Minnesota. During this period of time, hundreds, and sometimes thousands, of protestors gathered in the streets on a daily basis to protest Mr. Floyd's death and show support for the broader "Black Lives Matter" movement. As noted by Plaintiffs during oral argument, attendees at the social justice protests packed the streets in close proximity to one another while loudly chanting, yelling, and singing. Although some protestors wore masks, many did not. See Oral Argument Transcript, July 28, 2020 ("Tr.")[Dkt. No. 30], at 14:4-14. At times, these protests descended into chaos, violence, and destruction.

Although the protests stood in clear violation of EO 148, which limited outdoor gatherings to "no more than 25 people at the same time," Governor Murphy publicly expressed support for these protests. Id. Plaintiffs highlighted the extent to which the State prioritized protest activity, emphasizing that Governor Murphy even joined the protestors and marched with them in streets. See id., at 14:9-12 ("it doesn't take long perusing the news to see even the Governor shoulder to shoulder with individuals clearly not following social distancing guidelines."). In fact, at his daily COVID-19 briefing on June 1, 2020, Governor Murphy stated, "to anybody who goes out, you have the absolute right to go out and peacefully and rightfully protest." See Governor Phil Murphy, Transcript of June 1st, 2020 Coronavirus Briefing ("Murphy Briefing, 6/1").⁵ To Plaintiffs, the Governor's partisan conduct demonstrated "viewpoint discrimination as well as just plain basic uneven treatment." Tr., at 15:1-2.

Undeniably, the Governor's stance stood in contrast to his previous public statements on different types of outdoor gatherings, such as weddings, parties, and "re-open" protests, for which participants had been issued widely publicized criminal citations.

Governor Murphy explained that this difference in treatment came down to a matter of what he personally deemed more urgent and important:

It's one thing to protest -- I don't want to make light of this and I'll probably get lit up by everybody who owns a nail salon in the state. But it's one thing to protest what day nail salons are opening, and it's another to come out in peaceful protest, overwhelmingly, about somebody who was murdered right before our eyes, and is yet, if that weren't enough, yet another data point of the trail of data points that highlights systemic racism and the stain that slavery still leaves in our country today. I put those into different orbits.

Murphy Briefing, 6/1.

Eight days later, on June 9, 2020, Governor Murphy superseded EO 148 by issuing Executive Order No. 152 ("EO 152"), which stated that indoor gatherings would be allowed, but would be "limited to 25% of the capacity of the room in which it takes place, but regardless of the capacity of the room, such limit shall never be larger than 50 persons or smaller than 10 persons." EO 152 also allowed outdoor gatherings "limited to 100 persons or fewer." Most notably, EO 152 created an exemption: "[w]here the outdoor gathering is a religious service or political activity, such as a protest, the gathering is not required to comply with [the numerical capacity limits] of this Order." Governor Murphy explained that, "[g]iven the growing body of evidence showing the...