Across the nation, religious institutions are challenging COVID-19-related restrictions on religious worship. There are too many cases to note. We recently posted about the U.S. Supreme Court’s (SCOTUS) decision denying an application for injunctive relief filed by South Bay United Pentecostal Church challenging California Governor Gavin Newsom’s Stay-At-Home order and 4-stage reopening plan which restricted religious worship gatherings. We also posted about district court cases from Kentucky and North Carolina where executive orders in those states were found to violate the Free Exercise Clause of the First Amendment. On May 30, the Third Circuit Court of Appeals, in a one-line order, upheld a decision by the District Court for the District of Delaware that declined a church’s request for a temporary restraining order against enforcement of Delaware Governor John Carney’s COVID-19 emergency orders. Continue Reading
In a 5-4 decision, the U.S. Supreme Court denied an application for injunctive relief filed by South Bay United Pentecostal Church (Church) challenging California Governor Gavin Newsom’s Stay-At-Home order and 4-stage reopening plan as it relates to religious worship gatherings. The Church, which has between 3 and 5 services each week with 200 to 300 congregants, sought to enjoin the restrictions which limit attendance at places of worship to 25% of building capacity or a maximum of 100 people. The U.S. Court of Appeals for the Ninth Circuit denied the Church a temporary restraining order and preliminary injunction to enjoin the religious worship restrictions. A week later, the Supreme Court denied the Church’s application for injunction relief. Justices Ginsburg, Breyer, Kagan and Sotomayor voted to deny the injunction but did not write an opinion. Chief Justice Roberts concurred in denying the injunction and filed a short opinion. Justice Kavanaugh filed a dissenting opinion, which was joined by Justices Thomas and Gorsuch. Justice Alito dissented but did not write an opinion. Continue Reading
Last week, a federal court in North Carolina issued a temporary restraining order enjoining the assembly of religious worship provisions in Governor Roy Cooper’s Executive Order 138 (EO-138). The court found that EO-138 was likely to violate the Free Exercise Clause of the First Amendment. Under EO-138, all worship services involving more than 10 people must be held “outdoors unless impossible.” Governor Cooper’s Director of Legislative Affairs issued a “Guidance for Religious Services and Mass Gathering Restrictions” that provides:
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.
Earlier this month, a federal court in Kentucky temporarily enjoined an order issued by the Mayor of Louisville on the grounds that the order likely violated First Amendment and Kentucky’s Religious Freedom Restoration Act. On Holy Thursday, Mayor Greg Fischer ordered Christians not to attend Sunday services, including for the Easter holiday, even if they remained in parked cars. On Fire Christian Center, Inc. (On Fire) wanted to hold its Easter worship service and planned to have its congregants attend by remaining in their parked vehicles 6-feet apart in accordance with CDC guidelines. The only people who would be outside of cars would be the pastor and a videographer. On Fire sued the Mayor and City of Louisville and sought a temporary restraining order (TRO) to prevent the enforcement of the order. The court issued agreed with On Fire and issued the TRO. According to the court, “if beer is ‘essential,’ so is Easter.” (The court was quick to point out that it did “not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it.”) Continue Reading
Excerpt of a contributed article published in the New York Law Journal on February 28, 2020.
Absent a petition for certiorari to the U.S. Supreme Court, the Feb. 6, 2020 denial of the plaintiffs’ petition for rehearing en banc by the U.S. Court of Appeals for the Second Circuit will bring to a close almost 13 years of litigation over the school zoning laws of the Village of Pomona. With the issuance of the court’s mandate, the Second Circuit panel decision of Dec. 20, 2019, Congregation Rabbinical College of Tartikov v. Village of Pomona, 945 F.3d 83, is now final. That decision overturned the district court’s finding that two Village zoning laws were enacted in 2001 and 2004 with the intent to discriminate against the Orthodox/Hasidic community, leaving those laws in effect.
Religious entities that wish to short-circuit the often lengthy zoning application process are tempted to bring a facial challenge under RLUIPA. As the decision in Calvary Chapel Bible Fellowship v. County of Riverside, 948 F.3d 1172 (9th Cir. 2020) demonstrates, this approach can face as many hurdles as the zoning application. Continue Reading
RLUIPA’s equal terms provision requires municipalities to treat religious uses no worse than analogous secular assembly uses. Generally, if a municipality wants to either prohibit religious uses from a certain zone or subject them to stricter zoning review, it must have a strong justification to do so. Justifications may include promoting important public health and safety issues. However, municipalities may find themselves on the wrong side of a RLUIPA lawsuit if they treat religious uses worse than secular uses in the same zone if both have the same impact on the public health and safety justifications. A federal court in Maryland recently ruled that Baltimore County’s zoning code violates RLUIPA because it allows public schools as of right while requiring religious use to obtain special exception approval in a conservation zoning district. The main purpose of the district was to protect public water supply. Because public schools and religious uses had the same effect on water supply, the Court found an equal terms violation based on the face of the zoning code. Continue Reading
Ripeness is an important defense to RLUIPA claims. A plaintiff must receive a final decision from the local authority as to how the zoning law applies to its proposal. If not, plaintiff’s RLUIPA claim could be dismissed as unripe. Requiring a party to go through the full local procedures offers practical benefits to local governments, crystalizing the issues and presenting an opportunity to resolve matters prior to litigation. An initial denial by busy working-level zoning officials may create problems that can be solved by a zoning board of appeals’ more detailed and thoughtful review. The final decision requirement insures that review occurs before the courts become involved. Recently, however, plaintiffs have argued that finality is no longer necessary for a RLUIPA claim to be ripe. Continue Reading
Yesterday, the U.S. Court of Appeals for the Eighth Circuit issued an important decision regarding RLUIPA’s substantial burden and equal terms provisions. The court ruled in favor of the City of Kirkwood, Missouri in a years-long battle against a religious high school challenging the City’s lighting regulations for its baseball field. St. John Vianney High School, Inc. (“Vianney”) is an all-male Marianist high school that has operated in the City since 1960, wanted to expand its baseball games from daytime to nighttime. It claimed its religion required it to evangelize and draw people to its 37-acre campus to share its faith. Although Vianney installed the lights and obtained site plan approval, it took issue with conditions of approval imposed by the City which it claimed deprived it of all meaningful use of its baseball field at night. The Eighth Circuit affirmed the lower court’s decision in favor of the City. Continue Reading
Wayside Chapel Evangelical Free Church is suing Castle Hills, Texas for denying its application for a special use permit for property located at 113 Ivywood Circle. The Church claims that the extra space is needed to accommodate its religious exercise, particularly for Sunday School classroom programs. Reportedly, the property that was the subject of the zoning application is surrounded by other Church-owned property, where the Church already has a house of worship for 3,000 members, a distribution center for a Meals on Wheels program, administrative offices, and a building to house missionaries, among other things. According to the lawsuit, the Church’s existing space is not sufficient for its congregation, spurring the need for the 113 Ivywood Circle property. The lawsuit contends that the City Council denied the application despite the recommendation of the City’s attorney that the application be approved under RLUIPA, given that the Church already operates on surrounding properties. The Church is suing under RLUIPA, the U.S. Constitution, and state law. This is not the first time that Castle Hills has been sued for religious discrimination (read an earlier decision here). Local coverage is available here.