The question of whether First Amendment freedoms of assembly and worship should be or can be suspended during a pandemic was answered.  See, Roman Catholic Diocese of Brooklyn v Cuomo, 592 US, ___, 2020 WL 6948354 (Nov. 25, 2020) (houses of worship regulated differently from department stores, schools and factories) and Robinson v Murphy, 592 US ___ (Dec. 15, 2020).  “In recent months, certain other Governors have issued similar edicts.  At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples.  See Calvary Chapel Dayton Valley v Sisolak, 591 US ___ (2020) (Gorsuch, J. dissenting).”  Cuomo, Dissent at 2.  Or, …was it answered?

In Solid Rock Baptist Church v New Jersey, Opinion (D. NJ 2021), New Jersey banned gatherings indoors of more than ten people regardless of social distancing, masking, or temperature tests in March 2020.  The Plaintiffs sued seeking the executive order enacting the ban be held unconstitutional and enjoined.  The ban was altered as new executive orders were issued and finally terminated in June 2020.  While effective, the Plaintiffs were prosecuted in state court for violating the bans.  The Plaintiffs claimed that they restricted seating, numbers, required masks and took the temperature of congregants that had to have reservations to enter.  The federal trial court dismissed the case.  The federal trial court held the Plaintiff’s claims were moot because the complained of ban on indoor worship had been repealed by the state.  The court also held it was not likely the state would repeat the unconstitutional behavior in the light of the Supreme Court decisions reference above.  Indeed, the trial court held “[m]oreover, given the precedent set by recent Supreme Court decisions on pandemic-related restrictions, the law no longer provides [the State] a mechanism to repeat the alleged harm” (internal quotation marks and citations omitted).  The trial court refused to consider constitutionality because of pending criminal charges (under the Younger doctrine, a doctrine that prevents federal courts from intervening in state criminal cases absent extra-ordinary circumstances).

The actions of many states hampering church activities but not secular economic activities is a harbinger that churches should not ignore.  First Amendment rights are fragile and government has no compunction about overruling them.  Economic turmoil or political turmoil will cause as much fear and panic as do plagues and pandemics.  Churches that did not have a presence on the internet and the capability to conduct their activities virtually might be snuffed out of existence next time…and there will be a next time.  Moreover, churches are often completely disconnected from their local governments where they might actually have some influence.  Church members and pastors rarely know the local officials at all.  It will be the local elected city council by their police force, or the county Sheriff, that will come to padlock the doors or ticket (or arrest) attendees and pastors, not the White House or even the Governor’s Mansion.  City police and a county prosecutor initiated the prosecutions in the reported case, as a case in point.

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