The Volokh Conspiracy

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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.