Tag: COVID-19


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.


The most frequent question we have fielded from churches has been whether the parking lot service if conducted consistent with CDC and state guidelines is imperiled if a set of bathrooms is open and available. That question remains to be answered by any court. But, indirectly it may have been considered.

Please note that in this post we are departing from our normal practice of reporting court opinions that are more or less dispositive of the issues before the court.

In Temple Baptist Church v City of Greenville (ND Miss., No. CIV-2020-64), the United States Department of Justice (“DOJ”) filed a Statement of Interest in support of the church Plaintiff. Temple Baptist was alleged by the Plaintiff, and reiterated by the DOJ, to be a small church that did not have a website, did not have the ability to stream services, and had a membership that did not have universal access to streamed material. Temple held a parking lot worship service on Easter Sunday and used a lower powered FM transmitter to reach cars parked in the church parking lot. The church required social distancing car spacing and rolled up windows allowing no one to exit their vehicles. Mississippi declared churches to be essential businesses. The City of Greenville, however, enacted their own shelter in place order banning church parking lot services and allegedly declaring churches to be non-essential. The DOJ pointed out the enactment was directed at churches and ignored the contradiction in the city shelter in place order that allowed drive through restaurant patrons to sit in their cars in line with the windows rolled down. City police showed up at the church parking lot Easter service, knocked on windows, demanded driver’s licenses, and ticketed the attendees at $500 apiece.

There is no certainty the church will prevail even with the support of the DOJ and the protection of the First Amendment. In times of plague, epidemic and pandemic, government has extraordinary powers to temporarily curtail freedom of movement and association. However, most of the opinions on the subject date from the eras of yellow fever, smallpox and polio. The more recent opinions arose during the Ebola virus epidemic even though in the United States there were very few. However, allowing people to get out of their car to make grocery and liquor purchases, or to roll their window down to receive them, certainly seems to indicate stricter controls on church parking lot services are constitutionally impermissible.