Religious liberty

Judge Rejects Free Exercise Challenge to New Mexico Ban on In-Person Gatherings of >5 People in Places of Worship

|The Volokh Conspiracy |

In Legacy Church v. Kunkel (D.N.M.), decided yesterday, Judge James O. Browning rejected Legacy Church's Free Exercise Clause challenge to the state order restricting "restricts places of worship from gathering more than five people within a single room or connected space." The court concluded that the order was neutral with regard to religion and generally applicable to a wide range of activities, not just religious ones; it was therefore (1) not subject to strict scrutiny under the Free Exercise Clause, though the court also said that, (2) if strict scrutiny had applied, the order would have satisfied it. (The court also concluded, though this is a somewhat more esoteric matter, that (3) strict scrutiny wasn't justifiable under the "hybrid rights" theory.) The church didn't raise a claim under the New Mexico Religious Freedom Restoration Act, perhaps because federal courts aren't allowed to order state officials to follow state law.

Here's the heart of the analysis, which I think is generally quite right; the key precedents that the court discusses are

  • Employment Division v. Smith (1990), which held that there is generally no right to religious exemptions from neutral, generally applicable laws, and
  • Church of Lukumi Babalu Aye v. City of Hialeah (1993), which held that laws that are targeted at religious exercise (and aren't neutral and generally applicable) are unconstitutional unless they pass strict scrutiny.
  1. Strict scrutiny is inapplicable:

Legacy Church contends that the April 11 Order is not neutral, because it "specifically targets houses of worship. The Secretary does not restrict the number of people who may gather at funeral homes, media outlets, and other essential businesses. Walmart, Home Depot, and other big box retailers continue to welcome patrons. Shoppers may roam the aisles of retail establishments with no barriers between them so long as they maintain a distance of six feet from one another while they purchase house plants, fishing rods and DVDs. The Secretary's treatment of those essential businesses, as well as retailers, shows least restrictive means are available to further the state's public health interest. Defendants, however, chose to specifically target church services and other places of worship, taking them from exempt to banned on a weekend night before Legacy's most important religious holiday."

Legacy Church also contends that the April 11 Order is not generally applicable, because it is underinclusive with regards to secular conduct that might cause the same harm that the prohibition against religious gatherings is supposed to prevent. Legacy Church contends that courts apply strict scrutiny where the government exempts non-religious entities from the burdens associated with government action but withholds such exemptions from religious entities. Legacy Church accordingly argues that the April 11 Order is facially discriminatory, and so the Court must subject it to "'the most rigorous scrutiny.'"

Lukumi's majority opinion incorporates into its holding Smith's dictum that, when the government provides exemptions for secular conduct, it must assert a compelling justification for refusing exemptions for analogous religious conduct. Lukumi and Smith require the Court, however, to compare analogous exemptions. The April 11 Order does not prohibit religious conduct only; it prohibits a host of secular activities, both commercial and recreational. Accordingly, to determine the April 11 Order's neutrality, the Court must compare not only the April 11 Order's essential-business exemptions against religious-activity prohibitions, but also its religious-activity prohibitions against its secular-activity prohibitions.

Framed as such, the April 11 Order is neutral. The April 11 Order severely restricts myriad secular activities. By omission from its list of essential businesses, the April 11 Order restricts secular gatherings like sporting events, conferences, and conventions. For example, the April 11 Order maintains the April 6 Order's closure of non-Indian casinos and horse racing facilities, directs all non-essential businesses to reduce their in-person staffing by 100 percent, and restricts hotels and other lodging operations to twenty-five- percent capacity.

Nor does the April 11 Order reserve unbridled freedom for secular activities that it deems essential. For example, it allows essential businesses to remain open, "provided they minimize their operations and staff to the greatest extent possible." It also restricts such businesses to twenty percent of their maximum occupancies

The April 11 Order does not impose special disability on the basis of religion. The April 11 Order, accordingly, is neutral, because its "object is something other than the infringement or restriction of religious practices."

The April 11 Order is also generally applicable. Legacy Church contends that the April 11 Order violates the First Amendment because it is underinclusive; it exempts certain secular activities that also entail large gatherings. The April 6 Order and the April 11 Order provide a set of activities that Secretary Kunkel deems essential. Those enterprises include, among others, hospitals, farms, media services, funeral homes, automobile and bicycle mechanics, and business that generate the majority of their revenue by selling "canned food, dry goods, fresh fruits and vegetables, pet food, feed, and other animal supply stores, fresh meats, fish, and poultry, and any other household consumer products." Legacy Church contends that the April 11 Order is not generally applicable, because it allows "big box retailers to continue to welcome patrons" while prohibiting church services.

Since its earliest decisions addressing religious freedom, the Supreme Court has recognized that, if religious conduct is defined broadly enough, and its protections afforded too much bite against government regulation, "most activities of the modern regulatory state are thrown into chaos." "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" First Amendment caselaw thus recognizes and allows that "[a]ll laws are selective to some extent." Instead, the Free Exercise Clause "'protect[s] religious observers against unequal treatment,'" Impermissible "inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation."

Here, Secretary Kunkel may distinguish between certain classes of activity, grouping religious gatherings in with a host of secular conduct, to achieve what she determines is a balance between maintaining community needs and protecting public health. Secretary Kunkel does not pursue this aim "only against conduct with a religious motivation." Although public health risks may arise in allowing say, Wal-Mart, to continue its operations, the April 11 Order does not leave such business untouched. In furtherance of its goal of minimizing social proximity, the April 11 Order directs all essential businesses to reduce occupancy, enforce social distancing, and reduce staffing.

The April 11 Order reflects Secretary Kunkel's judgment that certain activities—namely, large gatherings—present the greatest risk to public health. Accordingly, contrary to Legacy Church's contention, the April 11 Order does not irrationally allow mass gatherings in retail stores while prohibiting them in churches, mosques, and synagogues. The April 6 Order and the April 11 Order instead prohibit all mass gatherings, religious and secular alike. The April 11 Order is thus generally applicable.

Significant factual differences exist between the Louisville Mayor's order [struck down by Judge Walker in his recent On Fire Christian Center decision, which has been in the news -EV] and the April 11 Order.

As the Court has discussed, the April 11 Order does not permit secular activities analogous to mass gatherings at religious services. Similarly, the April 11 Order does not specifically prohibit drive-through religious services—and Secretary Kunkel asserts that it does not—provided that people maintain social distancing.

Further, Legacy Church requests to undertake church services in a manner that the April 11 Order does not generally permit in secular activity and which Secretary Kunkel has concluded is harmful without regard to its religious nature. Specifically, Legacy Church wishes to invite parishioners to its services. The Court identifies no analogous secular conduct that the April 11 Order permits—namely, instances in which secular institutions may invite individuals to witness in person what the institution may broadcast remotely.

Further, Judge Walker's injunction applied only to the plaintiff-church's drive-in services. Legacy Church requests, however, that "the Court enjoin the Secretary and the State from enforcing the [April 11 Order's] mass gathering restriction of five people or more in a connected space."

Finally, Judge Walker focused almost exclusively on the defendant-Mayor's permission for [liquor stores] to continue operations, including drive-through operations. Judge Walker's analysis thus left unanswered whether the defendant-Mayor's order would be valid if it had also closed liquor stores, and so that Court has difficulty extrapolating Judge Walker's logic and applying it here. The April 6 Order and the April 11 Order permit breweries and distilleries to remain open for curbside carry-out services, but both orders omit liquor stores from the list of essential businesses, effectively closing them. {Although not necessary for the Motion's purposes, the Court notes that the sale of alcohol may rationally be deemed essential as necessary to prevent death from sudden alcohol withdrawal.} Accordingly, the April 11 Order presents the reverse situation from the Louisville Mayor's order: in Kentucky, stores remained open, but drive-in church services were prohibited; here, drive-in church services are permitted, but liquour stores are shuttered.

2. The order would satisfy strict scrutiny in any event:

Even if strict scrutiny were applicable, the April 11 Order is constitutional. To satisfy strict scrutiny, Secretary Kunkel must demonstrate that the April 11 Order is narrowly tailored to further a compelling government interest. Typically, "'a law cannot be regarded as protecting an interest of the highest order … when it leaves appreciable damage to that supposedly vital interest unprohibited.'" Here, Legacy Church concedes "without question" that the April 11 order furthers a compelling governmental interest. The Court agrees. When "faced with a society-threatening epidemic," state governments, pursuant to their Tenth Amendment police and public health powers, have an interest of the highest order in taking measures to protect the populace. "The right to practice religion freely does not include liberty to expose the community … to communicable disease or the latter to ill health or death."

The April 11 Order is narrowly tailored. First, the April 11 Order does not restrict religious activity beyond what is necessary to achieve this compelling interest. Secretary Kunkel interprets the April 11 Order as allowing religious organizations like Legacy Church to broadcast their services to followers via the internet and over television. Legacy Church is thus free to staff its services to the extent needed to worship and broadcast its worship.

Regarding its categorization of essential and nonessential enterprises, the April 11 Order does not leave"appreciable damage to [this] vital interest unprohibited." First, there is no exempted activity analogous to religious mass gatherings. Although, as Legacy Church points out, the April 11 Order classifies a range of activity as essential, it does not leave that activity unregulated. Instead, the April 11 Order restricts essential businesses to the greatest extent possible while still leaving those businesses practicable.

Further, those activities are unique in that, unlike Legacy Church's services, they cannot be conducted remotely. To name a few examples, grocery store cashiers and baggers cannot do their jobs, and farmers cannot grow their crops, via teleworking. That the April 11 Order permits some enterprises to carry on—albeit subject to restrictions—does not render the April 11 Order too loosely restrictive. The government need not choose between doing nothing in the face of a pandemic and closing all of society. It may choose a middle ground, provided that it does so "'without reference to the content of the regulated" activity. The April 11 Order satisfies that test. It prohibits mass gatherings without reference to those gatherings' content. In other words, the April 11 Order prohibits in- person religious services not because of those services' religious nature, but rather because those services entail bringing large groups of people into close proximity—precisely the environment in which a highly contagious disease proliferates. Accordingly, even if the April 11 Order were subject to strict scrutiny, Legacy Church is nonetheless unlikely to succeed on its Free Exercise claim's merits.

3. The "hybrid rights" exception to Smith wouldn't justify strict scrutiny:

Although Legacy Church does not assert a hybrid-rights entitlement to strict scrutiny—Legacy Church does not cite Smith in the Complaint or in the Motion—the Court pauses to note that such an assertion would not be viable. In Smith, Justice Scalia attempted to distinguish Yoder v. Wisconsin and West Virginia Board of Education v. Barnette, among other cases, by asserting that those cases involved special solicitousness to the plaintiffs' claims because the plaintiffs asserted multiple constitutional rights. Critics have panned the hybrid- rights theory, arguing, for example, that Justice Scalia's "use of precedent borders on fiction." The Court agrees that, at least in some of the precedent that Justice Scalia cites in support of the hybrid-right theory, those cases contradict Justice Scalia's explanation. [Discussion of Wisconsin v. Yoder omitted. -EV]

The hybrid-rights theory also presents functional problems, such as whether the theory requires independently viable rights, or whether it somehow operates to produce a whole greater than its parts. Neither approach is tenable. First, if asserting multiple rights creates greater protections than individual rights on their own, then Smith's ruling itself would not make sense. As Justice Souter noted, concurring in Lukumi, if the hybrid-rights exception requires implication of multiple, although not independently viable, rights, then the exception would "swallow the Smith rule," because the Smith plaintiffs' asserted activity involved religious and associational rights. As the United States Court of Appeals for the Third Circuit noted in Salvation Army v. Department of Community Affairs (3d Cir. 1990), associational freedom derives from either the expression of ideas or the exercise of religion. Those two rights, the Third Circuit commented, involve "different contours." As the Third Circuit explained, "[w]e would not expect a derivative right to receive greater protection than the right from which it was derived."

Alternatively, if a hybrid claim is one in which in which the plaintiff must assert an additional, independently viable right, then the Free Exercise right becomes superfluous, and the hybrid-rights theory produces no different outcome than the plaintiff would otherwise wholly receive on the alternative right.

Here, because the Court concludes that neither of Legacy Church's asserted rights are independently viable, only the former approach could potentially save Legacy Church's claims. But, as discussed, if two separate and independently unviable rights did not win the day for the Smith plaintiffs, Legacy Church's Free Exercise and Assembly rights, working together, do not compel a different result than either produces independently. Accordingly, were Legacy Church to assert a hybrid-rights claim, it would likely not produce a result different from the Courts conclusions in this opinion.

The court also concluded that the restriction didn't violate the rights to assembly and expressive association, but I will discuss that in a later post.

NEXT: Students Don't "Shed Their ... Freedom of Speech ... at the Schoolhouse Gate" ...

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  1. So, bottom line, it’s constitutional whether you apply strict scrutiny or not.

    1. According to this judge, at least…

  2. They closed the liquor stores. They closed the churches.

    But they kept open the “medical” marijuana shops…

    Gotta love New Mexico. And groups of <5 people.

    In other news, recent research shows the coronavirus dies almost instantaneously outside in the sunlight (half life of 2-4 minutes at this time of year). But…don't gather outside…..

    1. Well, if you’re suggesting that many “medical” marijuana purchases aren’t really for genuine medical reasons, you might well be right. But the New Mexico Legislature legalized medical marijuana use, on the theory that it is essentially a legitimate medical treatment; this makes it sensible that the Governor’s order would treat marijuana dispensaries the same way as pharmacies.

      1. I don’t know about New Mexico, but it seems that in Massachusetts they’re fairly easygoing about letting people get medical marijuana, even (or especially?) now that recreational sales are suspended.

        https://www.bostonglobe.com/2020/04/01/marijuana/getting-medical-marijuana-card-is-easier-than-you-think/

        Of course, I would never deny that it’s a strictly medical procedure, but given that anxiety is one of the treatable medical conditions, I think this is a reverse Catch-22. If you’re not an anxious person you probably don’t need it, but if you’re anxious that very fact is a medical condition which lets you get it.

      2. “Medical” marijuana is not for medical purposes.

        The two components of marijuana which have pharmacological effects (cannabidiol and THC) are separately approved by the FDA for specific medical needs. Those who require a medical prescription for these individual products can obtain them from a regulated pharmacy.

        “Medical” marijuana is a legal fiction.

        1. Armchair Lawyer: You may well be right that it was just a means of selling nearly unlimited legalization to the public; maybe the “medical” label isn’t really accurate, maybe some people were duped it while others were willing to along with the fiction.

          But my point is that, once a legal fiction is accepted, it tends to shape future behavior. When the New Mexico Governor was trying to divide essential from nonessential businesses, she was likely trying to use simple and publicly defensible lines. Once marijuana was labeled (however fictionally) as medical, basically the equivalent of a pharmaceutical substance, it became convenient to treat “medical” marijuana dispensaries the same as pharmacies. Nothing illogical there, it seems to me.

          1. Prayer is medical too. My guess is that attending church helps some more than getting stoned.

          2. Part of the issue here is certain medical facilities of clear benefit are off limits, (IE, dental practices, physical therapy appointments, and more) while some of dubious medical benefit are allowed (medical marijuana). Choices have been made, and it appears that they may have been made more in line with political views than with strictly medical views.

            It appears to increasingly seem that political considerations are driving a lot of the choices about what an be kept open, and what can’t be, rather than pure science or legal authorities.

            1. That’s true, but that’s an argument for the political branches to make better choices. It doesn’t necessarily present a constitutional problem.

      3. Maybe we need doctors to start writing prescriptions for whiskey again

    2. As to outdoor spread gatherings, the order only forbids gatherings (of five or more people) in open outdoor spaces if the people “are within six … feet of each other.” At that range, wouldn’t the concern be about immediate transmission of the virus (as someone, say, coughs or sneezes or perhaps even talks, and someone else immediately breathes it in) rather than about the virus lingering?

      1. The details here aren’t exactly clear. If the church decided to hold a large outdoor gathering (keeping people 6 feet apart) however, do you believe that this would be legal within the context of the order?

        As for transmission…

        There are a couple studies out of Stanford and Boston that seem to imply the virus is surprisingly widespread. Between 4% and 30% of the US population may have antibodies for the virus. At that point…

    3. The reports I have read conflict with your assertion concerning ‘dies almost instantaneously outside in the sunlight,’ Armchair Lawyer. Why do you circulate dangerous lies? Are you getting your information from Jerry Falwell Jr.? Pat Robertson? Alex Jones?

      1. His source may be this report from the ‘National Biodefense Analysis and Countermeasures Center’. Specifically, on page 7 there is text that supports the half-life in sunlight claim.

        One can find numerous older media reports that say sunlight doesn’t affect virii – I’m out of links but one example from CNN reads “Only levels of UV light much higher than what is in sunlight can kill viruses, experts said, and the levels that kill viruses can cause irritation to human skin and should be avoided.” which you can find via google.

        But my sense from scanning those is they were based on general claims about viruses in general, not actual testing of this specific virus. My impression is that NBACC’s results are from actual tests, and the people at Ft. Detrick do have expertise in this area.

        I’m certainly willing to be corrected, and it’s always nice for studies to be replicated, of course.

        1. Bingo. It’s the NBACC results.

      2. I’m getting my information from the National Biodefense Analysis and Countermeasures Center, part of the federal United States Government, authorized to examine the details of the Covid-19 virus.

    4. In other news, recent research shows the coronavirus dies almost instantaneously outside in the sunlight (half life of 2-4 minutes at this time of year). But…don’t gather outside…..

      You’re almost as good an armchair scientist as you are an armchair lawyer. Which is to say… don’t give up your day job.

      A single unpublished non-peer reviewed study suggests that in a lab, high temperature and high humidity seems to kill coronavirus quickly, which would mean that the risk of surface transmission outside could be quite low. It would not mean that the risk of direct person to person transmission outside would be equally low.

      1. Try updating your reading comprehension skills before criticizing others. It’s not the temperature or humidity that has the most dramatic effects.

    5. Maybe the judge has a regular 4-some for golf…

  3. I would say its not right. I see no exception in the 1st amendment to “except for viruses”.

    If these people want to risk their lives, that’s their right.

    If they want to meet and take precautions, that’s better, but they still cannot be prohibited from their free exercise.

    If the government wants to argue that there is an clear and present danger, then they need to bring out the evidence that these people are sick and will spread. But they didn’t. They just did a blanket ban of gatherings without regard to health status.

    This does not meet strict scrutiny, because there are more narrowly tailored ways of handling the situation. But because VIRUS REASONS, the courts fail to do their job, as usual.

    1. Patrick Henry, the 2nd: Isn’t part of the problem that people who get infected don’t risk just their own rights, but also the rights of others who may eventually come into contact with them? I touched on that in this post.

  4. Choose reason. Every time.

    Especially over sacred ignorance or dogmatic intolerance.

    Most especially if you are older than 12 or so. Childhood indoctrination, by then, fades as excuse for backwardness, intolerance, ignorance, gullibility, and insularity. By ostensible adulthood it is no excuse, not even in the most Republican town in America.

    Choose reason. And education, tolerance, science, modernity, liberty, progress, and inclusiveness. Avoid ignorance, bigotry, childish dogma, backwardness, authoritarianism, superstition, and insularity.

    Choose strong liberal-libertarian schools and modern, successful communities. Avoid fourth-tier (or worse), nonsense-teaching, conservative-controlled schools and desolate, can’t-keep-up backwaters.

    Choose reason. Every time. Be an adult.

    Otherwise, your adult-onset superstition might wind up clogging the courts, spreading viral infection, and encouraging reckless, anti-social behavior during a pandemic.

    1. Of course, the above doesn’t apply to Chinese New Year parades in New York City – please attend those parades in a show of solidarity – you’re not a racist, are you?

      Ignore the sniping of the clingers at National Review who suggested that attending such ceremonies might not have been a good idea.

      https://www.nationalreview.com/news/new-york-city-officials-were-slow-to-take-coronavirus-seriously/

      In sum: Easter celebrations bad, Lunar New Year celebrations good. Or else you’re a racist.

    2. Naturally avoiding dogmatic intolerance doesn’t apply to the blanket characterization of religions as backward, intolerant, ignorant, gullible, insular, bigoted, childish, authoritarian, superstitious, and/or nonsense

  5. We’ll add this onto Professor Volohk’s plate.

    Here’s the Mayor of New York City threatening to permanently shut down the ability of religious institutions to gather. Permanently.

    “Speaking to city residents on Friday, the mayor issued a stern warning to religious leaders that he had ordered police to shut down services involving more than 10 people. If those participating refused, he promised fines, and then took it a step further, threatening to “permanently” halt the religious institutions’ ability to gather.”

    Religious rights are under siege here….

    1. Maybe you shouldn’t take him so literally. He’s probably just trolling for effect, and you fell for it!

      1. The mayor of the largest city in the united states just threatened to close down religious institutions forever.

        What response would you like?

        1. Just treat it like a Trump tweet and consider it as a clever 11-dimensional chess move.

  6. This:

    there is generally no right to religious exemptions from neutral, generally applicable laws

    Seems directly contradicted by this:

    the state order restricting “restricts places of worship from gathering more than five people within a single room or connected space.”

    If the state wanted to restrict gatherings of five people they could do so in a religiously neutral manner. By singling out “places of worship” they are expressly targeting religious institutions.

    The court should have struck down this part of the order and upheld any general prohibition on gatherings of five people.

    1. Jubulent,
      I think you are mistaken about the state’s actual order. And this misunderstanding is, well, understandable, based on the phrasing by the court. But if you dive into the actual opinion, the court notes:
      “31. The March 24 Order prohibits all “mass gatherings,” which it defines as
      any public or private gathering that brings together five (5) or more individuals in a single room or connected space, confined outdoor space or an open outdoor space where individuals are within six (6) feet of each other, but does not include the presence of five (5) or more individuals where those individuals regularly reside.”

      In other words, the state’s order WAS neutral and did not single out religious. (I agree that an order that had a more-restrictive policy re churches, mosques, etc would be unconstitutional unless it could somehow get past strict scrutiny.)

      The court could have made it more clear by saying something like,
      “…the state order restricting “restricts places of worship [and all other non-home locations] from gathering more than five people within a single room or connected space.”…” [adding the words inside the brackets].

      1. It then listed a long list of exceptions.

        When you start making a long list of exceptions like this, it’s not really neutral anymore.

  7. What’s truly frightening is the number of bright, educated people who interpret the Bill of Rights as merely a suggestion.

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