by Katherine Beck Johnson , Kaitlyn Shepherd
May 20, 2020
**UPDATED as of 8/06
As the coronavirus pandemic has taken hold, religious services have been disrupted across the United States in perhaps the most drastic manner in recent memory. Many state and local governments have clamped down on gatherings, and almost everyone in the United States has had some kind of restriction placed on them. Yet not all government authorities have respected religious freedom during this process.
Various state authorities, particularly governors in California, Nevada, Washington, Connecticut, New Jersey, and Maine, have failed to prioritize religious liberty even as they prioritized other secular interests. Rather than looking at churches as partners to help care for our communities at this time, the governors in these states have treated churches as antagonists. As have certain other governmental authorities, they have failed to cooperate with churches, often hindering them from assisting their communities during this time.
The Department of Justice, which has been keenly focused on protecting religious liberty, released a memo expressing its concern that this fundamental right not be violated during the pandemic. The memo notes that reasonable restrictions may be permissible during this time. However, a state may not cross the line from “an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections.” Many churches have challenged discriminatory state and local orders by bringing suit in court. These court cases are listed below.
Churches that Won
1. Tabernacle Baptist Church v. Beshear
To curb the spread of the coronavirus, Kentucky governor Andrew Beshear ordered nonessential businesses to close. The state put a limit on “mass gatherings,” including those considered “faith-based.” Tabernacle Baptist Church planned to hold services in accordance with social distancing guidelines. Nevertheless, they were not allowed. The judge held that Tabernacle’s free exercise rights were violated, and granted a temporary restraining order.
2. On Fire Christian Center v. Fischer
On Fire Christian Center in Louisville, Kentucky was granted a temporary restraining order, allowing it to hold drive-in services for Easter Sunday. Judge Walker found that the Louisville mayor’s prohibition was not neutral because it allowed businesses, such as liquor stores, to remain open for drive-through purposes but not churches.
*Update: The temporary restraining order was dissolved and the case was dismissed after the parties agreed that the church would take reasonable steps to comply with the CDC’s social distancing guidelines.
3. Maryville Baptist Church v. Beshear (church initially lost)
The district court denied the Hillview, Kentucky church’s emergency motion for a temporary restraining order. The district judge found that the order applied to “all gatherings” and not just faith-based gatherings. The judge found the exceptions to be singular transitory experiences, whereas church services are communal activities. However, the opinion was appealed to the Sixth Circuit.
On appeal, the Sixth Circuit held that the governor’s order likely prohibits the Free Exercise Clause and the Fourteenth Amendment, especially with respect to drive-in services. The governor had allowed law firms, laundromats, liquor stores, and gun shops to continue operating. The plaintiff’s motion for an injunction pending appeal was granted in part.
*Update: On May 8, 2020, the district court granted the injunction with respect to the in-person services, finding that the church was likely to succeed on its Kentucky Religious Freedom Restoration Act claim and its constitutional claims. On May 9, the Sixth Circuit Court of Appeals, in another case involving Maryville Baptist Church, found that the governor’s restrictions on in-person worship likely violated the First and Fourteenth Amendments. Read more about the case here.
4. First Pentecostal Church of Holly Springs v. City of Holly Springs
In Mississippi, First Pentecostal Church of Holly Springs filed suit seeking a temporary restraining order permitting a planned Sunday service. At the hearing, the judge believed the city had made concessions that would resolve the dispute in question, but the court still put forth an order to clarify things. The judge noted that drive-in services should be permitted. Yet, the judge was less sympathetic to a request for a 35-person indoor gathering.
*Update: The church was burned down on May 20, 2020 in an act of suspected arson. Two days later, the Fifth Circuit Court of Appeals granted the church’s motion for a temporary injunction, allowing it to hold in-person services. Judge Willett issued a powerful concurrence on behalf of the church, condemning the City’s lack of sympathy and outrage over the destruction of a “neighborhood house of worship” and declaring the City’s argument that the arson rendered the First Amendment claim moot to be “shameful.”
5. Berean Baptist Church v. Cooper
A federal judge in North Carolina granted a temporary restraining order, which allowed churchgoers to attend church in person. The North Carolina governor banned indoor church services of over 10 people, though outdoor services were still allowed. The judge noted that some religious services cannot be conducted outdoors or with fewer than 10 people. He also noted that the governor allowed over 10 people indoors for secular activities. Finally, the judge said, “The Governor has failed to cite any peer-reviewed study showing that religious interactions in those 15 states have accelerated the spread of COVID-19 in any manner distinguishable from non-religious interactions.”
*Update: The case was voluntarily dismissed in response to changes in the Governor’s orders.
6. Edgewater Christian Church v. Brown
Two churches in Oregon sued Governor Brown. The church argues that if people are able to gather at restaurants, they should be able to gather at church.
*Update: Case voluntarily dismissed on June 10, 2020 after Phase 2 of Oregon’s reopening plans allows church to resume services.
Churches that Lost
1. Lighthouse Fellowship Church v. Northam (DOJ intervened)
In Virginia, Lighthouse Fellowship Church on Chincoteague Island filed suit after the pastor was issued a citation for holding a Palm Sunday service for 16 people. The church sought a preliminary injunction against Governor Northam’s order, but a U.S. District Court judge denied that request. The next day, attorneys for the church filed a notice that it would appeal to the U.S. Court of Appeals for the Fourth Circuit and asked again for a temporary restraining order.
Governor Northam’s new order will allow churches to hold gatherings at 50 percent capacity.
2. Cassell v. Snyders
In Illinois, The Beloved Church sued because the stay-at-home order infringed on their religious practices. The governor reissued an order allowing churches to meet as long as they abided by the requirement of no more than 10 people. The judge held that the current crisis implicates Jacobson and advances the government’s interest in protecting Illinoisans from the pandemic. It has been appealed to the Seventh Circuit.
3. Legacy Church, Inc. v. Kunkel
In New Mexico, Legacy Church challenged the governor’s executive order, which restricts places of worship to gatherings of no more than five people within a single room. The judge held that the order did not violate the church’s First Amendment because it was neutral and generally applicable.
*Update: On July 13, 2020, the court denied the church’s request for a temporary restraining order and a preliminary injunction. The judge found that there was no religious animus and that similar restrictions were imposed on secular entities.
4. Calvary Chapel of Bangor v. Mills
In Maine, Calvary Chapel sued Governor Mills over her executive order, which limited gatherings to 10 people. The district judge held that the plaintiff was unlikely to succeed on the merits. The judge found that the order was placed to protect the people from the virus. The judge found the order to be neutral and generally applicable.
*Update: The First Circuit Court of Appeals denied the church’s motion for an injunction pending appeal on June 2, 2020.
5. Elim Romanian Pentecostal Church v. Pritzker
Two churches in Illinois sued because they did not want to abide by the 10-person limit. The judge held that under Jacobson and a First Amendment analysis, the churches lost. The judge found that the order does not target religion. He noted that gatherings at church pose much more risk than gatherings at businesses. Finally, the judge noted that the order had nothing to do with suppressing religion but rather was executed to protect people from the disease.
*Update: After the churches’ request for an injunction pending appeal was denied by the Seventh Circuit Court of Appeals, the case proceeded to the U.S. Supreme Court, which denied the application for injunctive relief because of new guidance issued by the Illinois Department of Public Health on May 28. The case went back to the Seventh Circuit, and a panel of judges affirmed the court’s decision in favor of the governor. The court held that Illinois’s restrictions on the size of church gatherings did not violate the First Amendment. On July 27, the Seventh Circuit denied a request for a rehearing before the full court.
6. Gish v. Newsom
A day after Easter, three church pastors and a congregant sued the state of California, as well as Riverside and San Bernardino counties, for refusing to designate houses of worship as essential services. The social distancing mandates are particularly challenging for James Moffatt of Church Unlimited in Indio, who, the lawsuit complaint said, “believes that scripture commands him as a pastor to lay hands on people and pray for them, this includes the sick.” Here is the church’s complaint.
*Update: Request for a Temporary Restraining Order was denied. The orders were found to be neutral. The Ninth Circuit Court of Appeals also denied the request for an emergency injunction pending appeal. The case was eventually dismissed on July 8, 2020.
7. Cross Culture Christian Center v. Newsom
After a Lodi, California church was ordered to temporarily shut down, the Cross Culture Christian Center sued. “Plaintiffs have sincerely held religious beliefs, rooted in the Bible, that followers of Jesus Christ are not to forsake the assembling of themselves together, and that they are to do so even more in times of peril and crisis.” Here is the church’s complaint.
*Update: Request for Temporary Restraining Order was denied. The court noted the general police powers to promote safety during a public health crisis.
8. Abiding Place Ministries v. Newsom
The San Diego church Abiding Place Ministries argued that California’s exemptions for non-religious businesses such as “cannabis retailers, grocery stores, pharmacies, supermarkets, big box stores,” betray a preference for non-religious activity. Here is the church’s complaint.
*Update: Request for Preliminary Injunction denied on June 4, 2020 (issue is moot in light of May 25 guidelines).
9. South Bay United Pentecostal Church v. Newsom
With Gov. Newsom declaring a transition from “Phase 1” to “Phase 2” of the state’s pandemic response, allowing for more businesses to open and operate, two religious institutions felt they were not treated equally in the reopening plans. The South Bay United Pentecostal Church in Chula Vista and the Chabad of Carmel Valley synagogue in San Diego are suing, arguing that the revised order restricts their congregation’s free exercise of religion, assembly, speech, and right to due process and that it constitutes “excessive government entanglement with religion.” Here is the church’s complaint.
*Update: Case went to the Supreme Court. Application for injunctive relief was denied May 29, 2020 (Roberts, C.J., concurring) (holding that California’s reopening procedures do not violate the Free Exercise Clause of the First Amendment). After the decision at the Supreme Court, the church filed an amended complaint with the Ninth Circuit Court of Appeals, challenging the unequal treatment of churches as compared to protests and other secular entities.
10. Spell v. Edwards
Pastor Tony Spell of Life Tabernacle Church in Louisiana filed suit to stop Governor Edwards from enforcing restrictions on him and his church. Spell has proceeded in a manner lacking legal strategy, making it more likely he will lose.
*Update: Motion for Temporary Restraining Order was denied by the district court. On June 18, 2020, the Fifth Circuit Court of Appeals denied the pastor’s motion for an injunction because the request became moot when the challenged stay-at-home orders expired.
11. Bullock v. Carney
A pastor sued the Governor of Delaware claiming that the executive orders deprive his right to freely exercise his religion. A motion for a Temporary Restraining Order was denied.
12. Elkhorn Baptist Church, et al. v. Brown
More than 10 Oregon churches and multiple individuals brought suit against Governor Brown’s stay-at-home order. When the state started phase one opening, many churches still experienced heavy operating restrictions. The judge ruled that Brown’s executive order was null and void.
*Update: Although the church initially prevailed, the Oregon Supreme Court vacated the preliminary injunction in favor of the church because the lower court erred in holding that the Governor’s orders exceeded a statutory time limit.
Churches Awaiting an Opinion
1. Temple Baptist Church v. City of Greenville (DOJ intervened)
In Mississippi, Temple Baptist Church sued after congregants were ticketed for attending drive-in church services. The attorneys withdrew the request for a temporary restraining order because new guidance was issued.
2. Robinson, Knopfler v. Murphy
St. Thomas More Society is representing a Jewish rabbi and a Catholic priest against New Jersey’s Executive Order 107, which caps gatherings at 10 people. The police halted the celebration of Mass and a Jewish prayer ceremony, which requires 10 men.
3. High Plains Harvest Church v. Polis
High Plains Harvest Church sued Colorado health officials over their ban which prevents churches from gathering. The suit notes that if hundreds of people can gather at Lowe’s, they should be able to gather at church.
*Update: DOJ intervened in the case supporting the church. The district court denied the church’s motion for a temporary restraining order on June 16, 2020. Citing the Supreme Court’s recent decision in South Bay United Pentecostal Church v. Newsom, the court found that the church had “not made a strong showing of a reasonable likelihood of success in this matter.”
4. Calvary Chapel Dayton Valley v. Sisolak
A complaint filed on May 22, 2020 in the U.S. District Court for the District of Nevada, challenging Governor’s ban on church services of more than 10 people; complaint amended May 28, 2020 (updated Phase II plan says that churches not allowed to meet with more than 50 people).
*Update: The church’s motion for a temporary restraining order and preliminary injunction was denied by the district court on June 11, 2020. The court found that the church did “not demonstrate a likelihood of success on its First Amendment Free Exercise claim.” The U.S. Supreme Court denied the church’s application of injunctive relief on July 24, 2020. Four Justices dissented from the denial: Justice Alito (for himself, Justice Thomas, and Justice Kavanaugh), Justice Gorsuch (for himself), and Justice Kavanaugh (for himself).
5. Calvary Chapel of Ukiah v. Newsom
Three churches in California challenged Governor Newsom’s “ban on singing and chanting activities … in places of worship while permitting the same activities in all other similarly situated indoor uses within the counties where [they] are located.”
6. Harvest Rock Church v. Newsom
Another California church challenged Governor Newsom’s restrictions on singing and chanting during worship services. The church sought a temporary restraining order to prevent the Governor from enforcing the ban. Its request was denied by the court on July 20.
** It should also be noted that some attorneys and legal firms sent letters to localities that resulted in churches being allowed to resume services. They did not get to the point of bringing suit. First Liberty has a list that can be found here.
While there seems to be a split in approaches to how some courts are handling the lawsuits by the church, there is an overwhelming willingness of judges to allow outdoor church services. While the pandemic continues to unfold, we will be monitoring the church lawsuits in the courts and making sure churches are treated equally. Leaders in states less interested in protecting religious liberty during the pandemic should not be permitted to prioritize secular interests over faith-based ones. It is crucial to religious liberty that churches are treated equally; the right to freely exercise one’s religion should not be infringed upon unnecessarily.
Katherine Beck Johnson, J.D. is Research Fellow for Legal and Policy Studies at Family Research Council.
Kaitlyn Shepherd is a legal intern with Policy & Government Affairs at Family Research Council.