Last week, in one of the first judicial decisions addressing a First Amendment challenge to state-level social distancing requirements, a federal judge in New Mexico has denied preliminary injunctive relief to a church. This outcome differs from another recently-decided case in Kentucky, where a district court enjoined enforcement of a city restriction that applied exclusively to drive-in church services.
Like most other states, New Mexico has taken significant steps to combat the coronavirus. These actions began on March 11 with the declaration of a state of emergency, and urging from public officials to avoid gatherings and non-essential travel, and to engage in social distancing. On March 24, the state ordered non-essential businesses to close, and prohibited indoor gatherings of more than five people, with a special exemption for houses of worship. That was followed on March 27 by an order for recent travelers to self-quarantine. On April 6, the state issued another order, this time prohibiting outdoor gatherings, but again exempting religious worship. With Passover, Ramadan, and Easter approaching, the governor and health department encouraged religious organizations to use online methods of outreach. On April 11, the day prior to Easter, the state issued a modified no-gathering order, this time including religious organizations in its sweep.
Legacy Church, which has nearly 20,000 members and locations in Albuquerque, Rio Rancho, and Edgewood, livestreamed its Easter services, but did not prohibit members from attending services in person. The church has indicated that it plans to continue to hold in-person services during the COVID-19 pandemic. The church filed its lawsuit against the state and its Secretary of Health, on the evening of April 11, and on April 14, filed a motion for a temporary restraining order allowing Legacy to conduct in-person services.
The motion filed by Legacy alleged a violation of the First Amendment’s Free Exercise and Assembly clauses. In arguing its Free Exercise claim, the church contended that the state’s orders were not neutral toward religion, because they allow gatherings of more than five people at some retail establishments and other essential businesses. While the church agreed that resolving the pandemic was a compelling governmental interest, its position was that the state had not narrowly tailored its response. In response, New Mexico asserted that the Tenth Amendment protects its ability to respond to an infectious disease with a stay-home order, that the law in question was neutral and of general applicability, and that the state itself was immune from suit under the Eleventh Amendment. The secretary further asserted that the order was neutral as to religious organizations—and actually allowed livestreaming and drive-in services—and that the Free Exercise clause does not require a special carve-out for religious services. The state and secretary also argued that Legacy had not experienced irreparable harm because it was allowed to livestream its services, and further argued that the balance of the equities weighed in favor of the state, due to the harmful nature of the coronavirus.
In a lengthy written order, the court found in favor of the state and the secretary. Following a summary of case law pertaining to the Free Exercise and Assembly clauses, the court first determined that New Mexico was immune from suit under the Eleventh Amendment, under the doctrine of sovereign immunity. With respect to the claims against the secretary, after noting that a state’s Tenth Amendment authority is at a maximum when combating a public health crisis, the court concluded that the order was neutral and generally-applicable. Although the April 11 order by the state occurred on the eve of Easter and despite the fact that state law did not appear to cabin the secretary’s decision-making in any serious manner, the court determined that the order did not express animus or preference between religions, and was indeed responsive to the growing COVID-19 threat. The court rejected the argument that the secretary’s determination that religious gatherings were not essential businesses constituted religious discrimination. In so doing, the court observed that essential businesses were left open because they either sold products necessary for everyday life or because they sold products necessary to combat the public health crisis (and many cannot do business purely electronically), and determined that the secretary was within her discretion in determining that religious services should continue to occur only by electronic or drive-in means.
As such, the court determined that strict scrutiny did not apply to the case. Under the Supreme Court’s decision in Employment Division v. Smith, the court concluded that, because the law was neutral and generally-applicable, it should be analyzed under rational basis review. And given the deferential nature of the rational basis standard, the court determined that the state had easily satisfied its constitutional obligations.
With respect to the church’s Assembly Clause arguments, the court determined that, although the church has a right of expressive association, the state’s April 11 order suffices as narrowly tailored to meet a compelling governmental interest even if a heightened standard of review applies. The court determined that a less restrictive alternative, such as allowing in-person services but requiring social distancing, was not sufficient to accomplish the state’s compelling interest in limiting the spread of the virus. In arriving at that conclusion, the court noted that, despite early social distancing measures, the state had experienced increasing COVID-19 infections and deaths.
The court additionally concluded that Legacy is not irreparably harmed by the enforcement of the April 11 order, and that the state’s interest in protecting the public from the coronavirus supersedes the church’s interest in hosting in-person services.
As noted above, the New Mexico court’s decision departs from a decision by the federal Western District of Kentucky pertaining to Louisville’s order prohibiting attendance at religious services. That order, which specifically called out religious services for prohibition, was preliminary enjoined as violating the Free Exercise Clause and Kentucky law. There, the law was found not to be neutral toward religion, thus prompting the application of strict scrutiny.
The different outcomes between the New Mexico and Kentucky decisions convey a clear lesson to states and local governments respecting the application of stay-home orders: any order that is neutral toward religion is far likelier to survive constitutional scrutiny. As these will not be the last cases to challenge stay-home orders, and given that they will likely be followed by appeals, we are likely to learn a great deal more about the First Amendment limitations on government responses to the pandemic over the coming weeks and months.