Category: Free Exercise Clause


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 The federal trial court held the Plaintiff’s claims were moot because the complained of ban on indoor worship had been repealed by the state.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.


Because youth pastors and leaders frequently are asked by young energetic believers what rules apply to the expression of religious belief in various settings, today we will step slightly outside the lane in which these reports generally stay.  Young believers are required to attend school, and school order and discipline must be maintained, but even there the First Amendment reaches within reasonable time and place restrictions.  On college campuses, one might expect fewer time and place restrictions outside of classrooms because many students reside on campus.  However, suppression of First Amendment rights are sometimes more prevalent on college campuses.  Discouragement of speech that is contrary to certain sensibilities gets the worst treatment.

In Uzuegbunam v Preczewski, Slip Op. (US 2021), the United States Supreme Court reversed the 11th Circuit and the trial court.  The issue the opinion primarily dealt with was whether a claim for nominal dollar damages, rather than compensatory damages, could alone preserve standing to pursue a First Amendment rights claim.  The Court held that standing to sue was preserved by a claim for nominal damages.  The Plaintiff was a student at Georgia Gwinnett College, a “public college,” and decided to “witness” or share his faith on campus.  The Plaintiff did so and had tracts to hand out, too.  But, campus law enforcement made him stop.  The college policy permitted free speech activities on .0015 percent of the campus by allowing it only two designated free speech zones, and then only after securing the necessary permit from the administration.  The Plaintiff applied for the permit and received it.  The Plaintiff went to the free speech zone and began speaking and tracting during the time allowed by his permit.  Campus law enforcement told him to stop.  The policy also prohibited speech that “disturbs the peace and / or comfort of person(s).”  Plaintiff was informed that there had been complaints about his speech which triggered the policy.  Initially, the college defended the claim alleging the Plaintiff’s speech constituted “fighting words” but “quickly abandoned that strategy.”  The college abolished the policy.  The trial court and 11th Circuit held the case was thereafter moot and dismissed it.  However, as noted above, because the Plaintiff sought “nominal damages” in addition to injunctive relief, the lawsuit could not be dismissed.  The lone dissent suggested that if the college allowed a stipulated judgment for nominal damages in the case, the case would end without further proceedings.

Reasonable time and place restrictions on speech may be enforceable but draconian restrictions intended to suppress free speech are not enforceable.  The youth pastor or leader needs to ask the student to obtain a copy of their student handbook which usually contains the rules.  The opinion was silent on the issue of attorney fee awards to the Plaintiff.  That is the real financial risk in a civil rights case because the damages sought are almost always going to be nominal, impossible to quantify, or in the proof only modest amounts.  Dismissal ended that risk in the reported case.  On remand to the trial court, especially after a successful appeal to the United States Supreme Court, an expensive type of appeal, that risk might be resurrected.


The Sars-2 COVID-19 pandemic of 2020 has slowed church litigation resolution such that even the number of posts for 2020 in these reports have compared to prior years been diminished.  Nevertheless, there have been some startling court pronouncements.  The most startling may have been the struggle to determine if during this pandemic church attendance should be treated better than, the same, or worse than secular activities.  The secular activities might viewed as “essential” or merely matters of secular convenience.  On the secular side of the equation, too, there has been a struggle to determine what was “essential” and what was merely a matter of convenience.  In a capitalistic economy in a democracy, every secular business is “essential” to someone or it would not exist.

In Roman Catholic Diocese of Brooklyn v Cuomo [consolidated with Agudath Israel of America v Cuomo], Slip Op., 592 US ____ (November 25, 2020), New York limited religious worship service attendance to 10 in red zones and 25 in orange zones regardless of the size of the church building (seating of 400 to 1,000 was treated the same as seating for 100).  Meanwhile, in the same zones, “essential” businesses like hardware stores, acupuncturists, and liquor stores remained exempt (Gorsuch, concurring*).  However, churches though singled out, received preferential treatment compared to theatres and other similar venues (Sotomayor, dissenting).  (The dissent also all but said greater restrictions on worship were warranted because of public speaking and singing which seemed to play to the transmission preferences of this particular disease.)  The United States Supreme Court enjoined enforcement of the state’s regulation as to churches pending completion of judicial review at the trial court and court of appeals levels.

The courts of the United States were much more prone to accept even draconian governmental restrictions on public and private gatherings when the pandemic began because the characteristics of the disease were still unknown and because medical response systems were still being marshalled to handle larger if not unprecedented numbers of patients.  However, seven months later, those uncertainties are far more manageable than before such that the courts are unlikely to permit unbridled and uneven regulation of worship gatherings.  It should be noted that the church plaintiffs in these cases were able to prove that their gatherings remained virtually free of outbreaks of COVID and that their efforts to control disease transmission were consistent with scientifically advised methods.  In any event, even if public health priorities might favor secular activities over religious activities, it will not going forward permit greater curtailment on First Amendment protected religious activities.


There are none. Once in a while, someone who never read the First Amendment will sue a church or denomination and claim their doctrine is false and presented only to fill offering plates or emotionally enslave.

In Gaddy v Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Memorandum Decision and Order Granting Defendant’s Motion to Dismiss (D. Utah, 2020), Plaintiff claimed the factual and doctrinal assertions of the church were fraudulent, organized criminal activity, and caused her emotional distress requiring counseling. The federal trial court dismissed the case at the initial pleading stage invoking the Free Exercise and Establishment Clauses of the First Amendment. To avoid that conclusion, Plaintiff argued the fraud lurked in the misrepresentation of historical fact upon which doctrine or belief rested and not the doctrine or belief itself. The trial court held there was no difference.

As long as the First Amendment is read literally and generally applied as read, the freedom to believe and preach will remain unfettered. Churches should be as stalwart in protecting the free speech rights of others as their own. Churches that tacitly approve suppression of the speech of “they” will find that someday soon such churches will become “they,” too. Everybody is protected or nobody is safe.