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This post was authored by Otten Johnson summer associate Laura Salter.  Laura is a rising third-year law student at the University of Colorado Law School.

In late May, the U.S. Supreme Court denied a Church’s application for injunctive relief from California’s temporary restrictions on religious gatherings in South Bay United Pentecostal Church v. Newsom. Governor Newsom’s executive order, which parallels mandates issued in several states since March, limited both religious and secular public gatherings in an attempt to curb the spread of COVID-19.  The executive order also allowed certain businesses to remain open–for example, grocery stores and hardware stores.

The order temporarily capped worship service attendance at 25% of building capacity or 100 attendees, whichever is lower. The applicants in South Bay filed suit under the Free Exercise Clause of the First Amendment, contending that secular activities impacted by the order, such as retail shopping or on-site office work, were afforded more generous occupancy caps than places of worship, and that the discrepancy amounted to unjustified and unconstitutional religious discrimination.  The Ninth Circuit Court of Appeals had previously denied the church’s application for an injunction pending appeal, after the district court in the case denied the plaintiff’s motion for a temporary restraining order.  The church sought a temporary injunction from the Supreme Court, which would have the effect of staying the executive order while the case was being litigated.
Continue Reading Supreme Court Denies Church’s Application for Injunctive Relief in First Amendment Challenge to COVID-19 Restrictions

Legacy Church in Albuquerque, New Mexico. Source: Legacy Church.

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.
Continue Reading Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions