Freedom of Assembly

Judge Rejects Freedom of Assembly/Association Challenge to New Mexico Limit on In-Person Worship


I blogged below about Judge Browning's Free Exercise Clause analysis; but the church also raised an assembly clause challenge to the ban on gatherings of more than 5 people in places of worship. Such a challenge, if accepted, would have applied to nonreligious gatherings, too, but the judge rejected it (I think correctly, under the circumstances):

The Court concludes that the April 11 Order does not Legacy Church's freedom of assembly right, which it treats as a freedom of expressive association right to accord with Tenth Circuit and Supreme Court caselaw. The April 11 Order is reasonably related to the demands of the public health crisis, coronavirus. Moreover, if the April 11 Order was subject to a strict scrutiny analysis, the Court would conclude that it meets strict scrutiny and uphold the April 11 Order. Thus, the Court concludes that Legacy Church is not likely to win on the merits of its freedom of assembly, or expressive association, claim.

The right to expressive association is not an absolute right and can be infringed upon if that infringement is (i) unrelated to the suppression of expressive association; (ii) due to a compelling government interest; and (iii) narrowly tailored. See Roberts v. United States Jaycees (1984). … There is no doubt that the April 11 Order infringes on the right of Legacy Church to gather together to exercise their right of expressive association—the April 11 Order, which New Mexico announced only a day "before Legacy's most important religious holiday" restricts the manner in which Legacy can worship. When announcing the April 11 Order, Governor Lujan Grisham noted that the April 11 Order, which includes the restriction on number of individuals at a gathering, would place a "tremendous social and spiritual burden … on New Mexicans." Legacy Church's right to assemble may not have been eviscerated, because it still can assemble virtually or in cars , but the manner in which it can assemble is restricted.

There is also no doubt, however, that New Mexico did not impose the April 11 Order to suppress the ideas Legacy Church wished to express during its Easter service gathering…. The Court concludes that New Mexico's interest in the April 11 Order was unrelated to the suppression of religious expression.

As discussed [in the free exercise section,] a global pandemic and its local outbreak amount to a compelling state interest. Thus, the Court must determine whether the infringement is narrowly tailored. Legacy Church suggests that the restriction is not narrowly tailored for two reasons: (i) a less restrictive alternative is available in which Legacy Church requires the members of its congregation that attend services to stay at a physical distance from each other; and (ii) New Mexico permits "commercial shoppers and others" to gather despite ordering churches to stop hosting gatherings. Neither of these arguments is compelling.

First, the proffered "less restrictive" alternative in which congregation members attend services but stay physically distant from each other does not further the compelling state interest in escalating social distancing measures to mitigate COVID-19. In its March 23, 2020 order, the State of New Mexico ordered all essential businesses exempt from the stay-at- home order to "adhere to social distancing protocol and maintain at least a six-foot social distancing from other individuals [and] avoid person-to-person contact." Although the physical distancing likely helped mitigate the initial spread of disease, under these measures the number of deaths still doubled. If applied to houses of worship, this physical-distancing restriction, under which the death rate doubled in four days, may not advance mitigation efforts further, but instead merely sustain them.

With the number of deaths in New Mexico almost doubling between the April 6 Order and the April 11 Order, it is reasonable that New Mexico and the Secretary would escalate social distancing measures. The Court concludes, therefore, that applying social distancing measures that were unable to contain the drastic increase in New Mexico COVID-19 cases is not a less restrictive alternative to the cap on gatherings, because it would sustain, rather than increase, New Mexico's social distancing measures. {The Court declines to substitute its judgment for that of subject-area experts because "'[i]t is no part of the function of a court" to decide which measures are "likely to be the most effective for the protection of the public against disease.'" In re Abbott (5th Cir. 2020) (quoting Jacobson v. Massachusetts (1905)).}

The Court further concludes that Legacy Church's argument that the restriction is underinclusive, because it does not ban mass gatherings at essential businesses, incorrectly equates its religious services with the essential businesses that are permitted to stay open. Legacy Church specifically draws attention to the following businesses that are permitted to stay open: media outlets, Home Depot, Wal-Mart, grocery stores, automobile repair shops, and funeral homes. Each and every business mentioned by Legacy Church either sells items necessary for everyday life or to facilitate the mitigation of COVID-19. While, as Legacy Church noted, some people may take advantage of the exemption and purchase frivolous items, these are open for good New Mexico citizens to use them judiciously.

As the Secretary Kunkel noted, Home Depot sells items for emergency home repairs, as does Wal-Mart. Wal-Mart also sells thermometers, acetaminophen, and food. Grocery stores, obviously, sell food. All these stores facilitate the purchase of necessary items that help treat ill individuals who are staying at home, or that make a house habitable, or that feed people so they can stay alive. And, of course, people will continue to die, because of COVID-19. Although the Court wishes that it could pretend these deaths would not occur, it recognizes that as long as people die, "funeral homes, crematoriums, and cemeteries" will need to stay open to take care of and give dignity to the deceased. Further, in contrast to Legacy Church's contention, nothing in the April 11 Order suggests that funeral homes can host mass gatherings.

Automobile repair shops are necessary so that essential workers—emergency room physicians, grocery store workers, police officers—will be able to work on the frontlines unhampered by a broken engine. Finally, media services permit the dissemination of crucial COVID-19-related information to citizens. Secretary Kunkel has deemed these entities essential, and the Court is not in a position to second-guess expert decisions on which restrictions will be most effective at saving lives during an epidemic when those restrictions are based not on suppression of religion but suppression of a epidemic.

The Court recognizes that, to many individuals, religious worship is equally essential and important to life. See Las Cruces Resumes Public Mass Article (quoting Las Cruces Bishop Peter Baldacchino as saying that "while we run a daily count of the physical deaths, we are overlooking those who are dead interiorly."). Importantly, however, none of the April 11 Order's listed essential businesses can operate remotely, while religious services can be broadcast to congregation members. The broadcast, of course, may be dissatisfying for some parishioners, but they will still be able to access the services remotely, regardless of their satisfaction. The entities that Legacy Church named are not comparable to houses of worship; all of these services are necessary to everyday life and to fighting the epidemic, and none of these services can be done remotely, in contrast to religious worship, which, while important, does not facilitate survival of the public and has the ability to be conducted remotely.

Moreover, religious organizations have received preferential treatment relative to their closest comparators—in terms of physical set-up and risk, not necessarily meaning. Movie theatres and concert halls are spaces where people gather and sit together for a period of time similar to Legacy Church's auditorium. On March 23, New Mexico shuttered movie theatres and concert halls. Meanwhile, places of worship were kept open, perhaps because New Mexico acknowledge religious worship's importance to many individuals. Thus, the April 11 Order is not underinclusive even though it has different restrictions for places of religious worship than it does for essential services necessary for everyday life and survival that cannot be done remotely. Yellowbear v. Lampert (10th Cir. 2014) (stating that a law is underinclusive when it "fail[s] to cover significant tracts of conduct implicating the law's animating and putatively compelling interest").

Nor is the April 11 overbroad. It allows Legacy Church and other religious organizations to broadcast services. It does not mention a ban on drive-through services. Presumably, based on the Secretary's Response, Legacy Church can still assemble for worship services, albeit in their cars in a parking lot. Thus, the Court concludes that Legacy Church likely will not succeed on the merits for its freedom-of-assembly claim.

The Court need not even go so far to determine that Legacy Church will not succeed on the merits. The Supreme Court has a "settled rule," that "under the pressure of great dangers," constitutional rights may be restricted "as the safety of the general public may demand." Jacobson. Thus, because the Court has determined that the April 11 Order meets strict scrutiny, the Court concludes that it also meets this lesser standard of being related to the safety of the general public.

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

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  1. Interesting argument.

    ” Finally, media services permit the dissemination of crucial COVID-19-related information to citizens”

    One could argue that the media isn’t required here, as the government can easily disseminate the needed information through well established channels, including the emergency broadcast network, and various government websites. Media broadcasts or reports on “sports” or “entertainment” as well as other topics, are not an essential activity, and should be shut down, in order to minimize the risk of COVID-19 transmission. Again, standard government broadcasts and reports can easily meet the need to disseminate information.

    Alternatively, the religious services provide an opportunity for a sermon from the pastor to reach the constituents on the issues around COVID-19, especially in regards to an audience that is less reachable via traditional channels.

    1. Government broadcasts make the media unnecessary? Church gatherings are essential during a pandemic . . . because news for the credulous?

      That is precisely the type and level of argument that has enabled the liberal-libertarian mainstream to win the culture war and reduce conservatives to disaffected whiners about Heterodox Academy (affirmative action for clingers in academia).

      Thank you, conservatives, for making American progress possible by being such gullible, nonsense-spouting competitors in the marketplace of ideas.

      1. I think it most relevant that citizens with rifles have been on the front steps of at least two state capitols this week. Keep it up and this will get ugly.

        1. You should organize a posse to go apprehend them.

        2. All-talk right-wing malcontents are among my favorite culture war casualties — and, apparently, the natural audience for a white, male, movement conservative blog.

  2. Eugene,
    One argument that most would find persuasive is that, “You can still find alternate ways of practicing your religion during this time of crisis.” (Even if doing services remotely, or with religious-group members sitting in individual cars, etc., is not ideal or preferred.)

    But what about Religions where having a larger number IS an absolute foundational requirement? I’m thinking immediately of the minyan in Judaism, where you *must* have 10 male adults present in many cases. (I assume that there are likely other religions that also have a requirement of some minimum number to perform important [to that religion] rituals.)

    Questions: Has any Jewish organization or group litigated this yet in re Covid-19? Would this “large groups are essential to our religious practice” argument tip the scales in any way, or, would the govt’s across-the-board, apply-to-everyone, restrictions make this wrinkle legally-irrelevant?

    1. A counter argument is the government can find ways of allowing gatherings without prohibiting them. Like mask wearing for example.

      But instead they just banned it.

      Its a clear violation of free exercise of religion and freedom of assembly, but because VIRUS REASONS they irrationally allow it.

      1. I’m always concerned when non-lawyers proclaim how brilliant they are in regards to legal issues.
        When a state says, “Due to the pandemic, all people are forbidden from doing Action X, it is *not* a CLEAR violation of free exercise. Now, it might be a violation, or it might not. People of good faith (heh) can agree to disagree. And that’s why they built courthouses.

        As Prof. Volokh (and other VC commentators) has posted many times; it is actually a very complicated legal issue. I think that, almost by definition, when very highly educated and very smart people disagree on a legal answer, it’s a good clue that it is not CLEAR what the answer ought to be. Try to avoid falling into the trap where you assume that your position is automatically correct–and so clearly correct–as this often leads to the even worse presumption that your position is So. Obviously. Correct. that it must mean that the other side is acting in bad faith.

        1. I’m being pragmatic here — “legally can” and “prudent” are not the same thing.

        2. “I’m always concerned when non-lawyers proclaim how brilliant they are in regards to legal issues.”

          That’s because non-lawyers don’t have the magic golden spectacles that let you read the hidden lines in the Constitution that qualify all those absolute statements of rights. They see the “shall not be infringed”, but don’t see the “except if there’s a reason to”. They see the “in all criminal prosecutions”, but can’t see the “unless they’re not serious.”

          All they’ve got to go on is the Constitution that was publicly ratified, and it lacks all the secret codicils.

    2. But what about Religions where having a larger number IS an absolute foundational requirement? I’m thinking immediately of the minyan in Judaism, where you *must* have 10 male adults present in many cases.

      Well, they should apply to the legislature for an exemption.

  3. I got a feeling these judges and mayors and governors are gonna find all sorts of ways to accommodate religious worship once Ramadan rolls around.

    1. Well, you have a First Amendment right to have feelings! Any real evidence to support that feeling? For instance, many Muslims go to mosque weekly (or even more often); have you seen rules that give mosques exemptions that churches and synagogues don’t get?

      1. Is the same evidence that seems to support them being exempt from being forced to create expressive works of art for gay weddings.

        1. These are your people, Prof. Volokh.

          I nearly feel sorry for you.

          1. Sam: Muslims will be treated differently that Christians.
            Eugene: But what about all of these real-life counter-examples that are happening right now, that are showing that Muslims are being treated exactly the same as Christians and other religions?
            Sam: Look over there! Irrelevant legal squirrels!!!!!!

            1. …than Christians…


            2. Sam: When Ramadan happens, Muslims will get special treatment.
              Eugene: But what about right now when it’s not Ramadan????
              Sam: dot dot dot

              1. I believe Prof. Volokh was asking if there’s something you can point to to explain why you think Muslims will be given favored treatment during Ramadan, or whether it’s just a feeling you have.

                1. Didn’t I provide that already? The gay wedding expressive works of art exemption they apparently have?

                  1. I’m not aware of any such exemption.

        2. Is there an instance of that actually happening? Or is it just the sort of thing that you think would happen if it came up.

          1. Does my use of future tense confuse you or something?

        3. Sam Gompers: Can you elaborate, please? Muslims are likely about 1% of the U.S. population, and my sense is that likewise relatively few Muslims are wedding photographers, wedding singers, calligraphers of wedding invitations and the like. Many are from immigrant communities, and thus might be especially likely to serve their own communities (not a certainty, of course, just a tendency), which might be especially unlikely to include gay couples who want to get married.

          As a result, I don’t think I’ve ever heard of anyone trying to get a Muslim wedding photographer to photograph a same-sex wedding. It’s not like such stories about any photographers are that common — we may have heard of a dozen or so throughout the country in all the relevant trades (photography, calligraphy, etc., even if you also include bakers and florists, as to whose works the expressive status is less clear). What’s your basis for thinking that they are “exempt” from that, as opposed to that there are just too few to have generated any possible test cases?

          1. Man, you are bending over backwards to be polite. Which is to your credit, of course.

            The more cynical of us might observe that Sam is doing his best Dr. Ed impression, which basically means coming up with some anecdote that supports his position . . . except that no one else can find evidence of said anecdote. But what do I know? (Reading online legal discussions has turned me into a disbelieving, suspicious, husk of a man, alas.)

          2. Steven Crowder several times has gone into Muslim bakeries and has been rejected for gay weddings. He’s published the videos widely.

            Yet there’s been silence from the outrage crowd and silence from the gay and trans activists who target Christian businesses.

            They are defacto exempt.

            1. Has he filed a complaint with the applicable state enforcement agency? Or filed a lawsuit? If not, which he obviously hasn’t because he’s nothing more than an online troll, why do you think anything would happen?

          3. I was going to make much the same point: If Muslims were being forced into involuntary servitude over SSM, at the same rate as Christians, there are few enough Muslims, and few enough cases involving Christians, that the number of cases involving Muslims could easily round to zero.

            OTOH, the cases involving Christians are such a tiny fraction of Christian florists, that it would be quite easy for Muslims to match the numbers if they just had a higher proclivity to refuse to knuckle under.

            If only somebody were checking the Muslim florists to collect some actual data. So that we didn’t have to just speculate.

      2. Official rules? No.

        My governor has explicitly prohibited all religious gatherings. The local mosque is continuing to hold daily services. Churches are closed.

        In their defense, our local PD acknowledges that our governor is a moron. They probably wouldn’t shut down a church holding services.

        1. My governor has explicitly prohibited all religious gatherings. The local mosque is continuing to hold daily services. Churches are closed.

          Do you have a news story about this you could share?

          1. I don’t know if it has even been in the news. It’s a non-story because people in this area aren’t freaking out.

            1. How are you informed about the governor’s explicit ban, the closed churches, and the open mosque if not from news reports? In which state does a governor’s explicit prohibition of religious gatherings evade news reports?

    2. Does wearing a burka count as social distancing?

  4. “…due to a compelling government interest.”
    amazing how many times the drafters of the constitution used that phrase

    1. The drafters of the constitution didn’t apply the Bill of Rights to the states in the first place, meaning states would be free to ban religious exercise without running afoul of the First Amendment.

      1. The 10th amendment, which has been made almost irrelevant by the courts, explicitly put rights of individuals above powers granted to the states. The 10th amendment makes a pretty plain statement about rights reserved to the people:
        “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

        1. But see the 14th Amendment: “No State shall make or enforce any law…”

        2. Read more better. The tenth amendment does not “explicitly put rights of individuals above powers granted to states,” for multiple reasons, including that the constitution does not grant powers to the states. The tenth amendment says nothing about the allocation between states and the people, except that states obviously cannot have powers that are prohibited to them.

          But nothing in the first amendment prohibits anything to the states. That’s why it wasn’t until the 14th amendment (enacted after the drafters were dead) that states were prohibited from these matters.

          1. “The tenth amendment says nothing about the allocation between states and the people, except that states obviously cannot have powers that are prohibited to them.”

            Nor the federal government powers that aren’t delegated to it. That part is kind of important.

        3. The “respectively” part means, who gets them depends on the details of STATE constitutions. If a power isn’t delegated to the federal government, or prohibited to the states, a state government might have it, or might not, depending on its own constitution.

  5. While you keep posting articles about how these restrictions are perfectly Constitutional, I’m far more interested in an article expressing when they would be found to be otherwise.

    There’s a picture you’re currently painting that suggests these restrictions could go on indefinitely provided that COVID-19 is also around indefinitely, and that they would be perfectly consistent with the Constitution.

    So the Government could in theory, create a virus that then permits them to forever restrict peaceful assembly and other expression, provided that the virus is a significant risk?

    1. Well, I have posted about gun rights and abortion rights restrictions that I think might be unconstitutional (in part because they don’t involve large gatherings of people). As to your broader slippery-slope risk, I wrote about that in my Why I’m Not (Yet?) Much Worried About the Civil Liberties Restrictions Flowing from the Coronavirus Response post.

      1. Thank you for your response. I should have been more clear that I was referencing the First Amendment portion of these restrictions, and not the partisan issues of abortion and firearms.

    2. Jason,
      In the genre of dystopian future science fiction, I expect that your plot has been done already. (Govt produces a virus [or series of viruses] in order to enforce ever-increasing suppression of civil rights.) If it has not; you should run with it, and write it. Given that Covid-19 is expected to come back in waves, a fiction novel directly addressing this would be a best-seller.

      Not the worst moneymaking idea I’ve seen on the VC.

  6. The court’s distinction that grocery stores, pharmacies, car repair stores, Home Depot, etc. are essential is correct, but saying these places cannot operate remotely is incorrect. These stores can remain closed to the public while purchases of needed items can be ordered online, and delivered to the individual’s home. As for needed car repairs and maintenance, individuals can call the repair shops and have a driver pick up the vehicle from the person’s home and drive it to the repair shop for maintenance or repair. The court’s tortured effort to distinguish fails, thus their strict scrutiny analysis comes closer to a rational relationshop analysis, which is the inappropriate test when restricting rights under the 1st Amendment. As for remote or virtual viewing of a religious service, that doesn’t work for all religions. For example, Orthodox Jews require a minyan for prayer, and forbids the use of electronic devices on the Sabbath. Although the court may deem this a matter of life and death, that argument fails when as described above folk are allowed to go shopping in person, but not allowed to worship in person in the manner required by their faith.

    1. This really gets to the crux of my issue with the current line of logic. Religion, rather than being treated like a right enshrined by the first amendment, is being treated like a mere entertainment option, rather than an essential service.

      If the global guidelines (6 feet apart, wearing masks) that are attempted to be enforced in a commercial setting were done, this would pass scrutiny, I believe. But religious services are being treated far more harshly than commercial and non-critical work services. Grocery stores, liquor stores, home improvement stores, printing stores, could all be shut down, with minimal staffing, and orders by delivery or pick up only. None of this has been done. Pharmacies could be converted to drive through only (as they propose church services be done only). This also hasn’t been done. The Media is free to operate as it always has, free of any of the restrictions placed on religious services. Cemeteries and funeral homes are still open. (Why? Yes people are dying, but they could just be burned in the hospital incinerator…). Abortions still readily go through, because that’s a right… But religion?

      The question we have here is simple. Is religion an essential service, its rights actually guaranteed by the 1st amendment? Or are they considered just a “entertainment” option able to be regulated like any other entertainment?

      Here’s the thing. If they actually enforced, for example, banning funeral homes and cemetery services , forcing everyone to stay out of grocery stores…people wouldn’t stand for it. You saw the outrage against limiting abortions to preserve medical supplies. But, religious services aren’t getting the same protections. They are “second-tier” rights, apparently. Not enough people seem to care about the infringement.

      Moreover, different states with stay at home orders previously made room for religious services. As of April 2nd, for example, in Arizona “Religious services are exempt as an essential activity because worship is protected under the first amendment of the Constitution. However, the exemption specifies that the services are exempt as long as they “provides appropriate physical distancing to the extent feasible.””

      1. This really gets to the crux of my issue with the current line of logic. Religion, rather than being treated like a right enshrined by the first amendment, is being treated like a mere entertainment option, rather than an essential service.

        Just because something is constitutionally protected doesn’t mean it’s an essential service.

        A 500,000 person political march down Fifth Avenue is, with the proper permits, constitutionally protected. But that doesn’t mean the government can’t impose restrictions on such things during a viral plague.

        “Essential services” refers to material things like food, medical care, policing, and the like. It doesn’t refer to religious meetings, because you can survive without them. Now you can make religious arguments that the invisible man in the sky will strike you down and send you into an existence of eternal torture if you dont’ hold them, but those arguments are contested and can’t be the basis of public policy. It’s not “essential”.

        1. “A 500,000 person political march down Fifth Avenue is, with the proper permits, constitutionally protected. But that doesn’t mean the government can’t impose restrictions on such things during a viral plague.”

          See, this is where you get to the point where the government is entirely justified in breaking up those political protests outside the statehouses regarding the shutdowns. Start there, then imagine a 500,000 person march down 5th avenue demanding that this shutdown be ended. Those nasty nasty protestors are “congregating” and need to be arrested and separated for their own good. These “rights” aren’t “essential” and can be freely struck down, so long as an argument can be made about saving lives.

          This is how civil rights and a country dies. Being a libertarian means protection the rights of the people.

        2. “Just because something is constitutionally protected doesn’t mean it’s an essential service.”

          Well, that’s the argument in a nutshell, isn’t it: Is the government actually allowed to treat exercise of a constitutional right as non-essential? And not even go with the least restrictive option, flatly prohibit it?

          There’s an argument that something being an actual enumerated, civil liberty actually DOES preclude treating it as unessential.

  7. 1. A “less restrictive” means of accomplishing the goal would have been to require the wearing of a mask and gloves which would have greatly lessened the chance of contagion.

    2. We’ll see on April 23 whether the restriction is based on a specific religious expression. If the local mosques are prohibited from celebrating Ramadan, then we can assume that the restriction isn’t being applied to the free exercise of religion.

  8. Some people are providing medical care to infected patients — in some cases rejoining the profession from retirement, in others working for the modest compensation of a nurse or orderly — during a pandemic.

    Some medical personnel are sleeping in garages or basements when returning home from work, attempting to refrain from exposing family members to the virus.

    Some people are working at grocery stores or pharmacies, or driving buses or trains, or serving as police officers or paramedics, or delivering food or medications, sustaining risk to attempt to serve others.

    These people are selfless contributors to our society, worthy of admiration.

    And some people are whimpering about restrictions on church services, or defying the law to attend church services. or going to court to press the bounds of special privilege for superstition during a pandemic — increasing risk for everyone pointlessly, because they believe their superstition is essential.

    These people are credulous, selfish toddlers of all ages, worthy of scorn from their betters.

    Choose reason, science, tolerance, modernity, and progress, everyone. Avoid superstition, dogma, bigotry, backwardness, and pining for illusory good old days.

    Otherwise, you could wind up a virus-spreading, tongues-speaking, science-disdaining, rattlesnake-juggling, horn-honking, raeson-rejecting, Republican-voting, rifle-toting clinger — one of the people whose stale thinking and dysfunction our society must overcome.

  9. One reason why rejected a claim based on the freedom of assembly is that broadcast services are an alternative. I am thinking about this ruling in the context of the (wise) decision by authorities in various state capitals not to enforce the social-distancing requirement against anti-lockdown and pro-opening protest rallies, but thinking about whether the First Amendment would protect the right to engage in such rallies. Is the proximity of hundreds or thousands of like-minded individuals needed to communicate the message?

  10. Every coins has two sides just remember that

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