The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


N.Y. Law Banning Gun Carrying in Churches (Including When Authorized by Church) Unconstitutionally …

discriminates against religious institutions


So Judge John L. Sinatra Jr. (W.D.N.Y.) held yesterday in Spencer v. Nigrelli:

Plaintiffs argue that, by "prohibiting the exercise of a fundamental constitutional right in places of worship while permitting its exercise on other private property—and by denying to religious leaders the authority it reserves to other private property owners to permit firearms," the State "treats comparable secular activity more favorably than religious exercise and discriminates on the basis of religion." For this reason, and as set forth below, the houses of worship exclusion violates Plaintiffs' right to free exercise of religion guaranteed by the First Amendment. …

"[A] plaintiff may carry the burden of proving a free exercise violation" by "showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not 'neutral' or 'generally applicable.'" Should a plaintiff make such a showing, the Court must find a First Amendment violation "unless the government can satisfy 'strict scrutiny' by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest." {The Court need not resolve the issue of whether a threshold showing of a burden on a sincerely held religious belief is required [for religious discrimination claims -EV]. As discussed below, that requirement—if it exists—is met because the houses of worship exclusion does burden Plaintiffs' sincerely held religious practices.} Plaintiffs are likely to succeed on the merits of their Free Exercise Clause claims….

Pastor Spencer believes that he has "a moral and religious duty to take reasonable measures to protect the safety of those who enter the Church." He explained that the "Bible often refers to religious leaders as 'shepherds' and tasks them with caring for and protecting their 'flocks.'" He therefore believes that "providing for the physical safety of the Church—the body of Christ—is [his] religious act and duty as a pastor." He also believes that "the Bible calls on the Church—as members of a single family united in Jesus Christ—to love, serve, and protect one another." These beliefs are "shared by the Church."

Consistent with these religious beliefs, Pastor Spencer "regularly carried a concealed pistol" on Church campuses and allowed "security volunteers and other churchgoers with New York carry licenses" to do the same. In short, he "carried and allowed others to carry" concealed firearms at church "to ensure protection of the Church and its worshippers in case of violent confrontation" in accordance with their religious beliefs. He would have continued to do so "but for the enactment and enforcement" of the place of worship exclusion.

The State argues that the place of worship exclusion "does not foreclose Plaintiffs' ability to protect worshippers at [the] [C]hurch with armed individuals." The statute, it explains, "provides alternative mechanisms for Plaintiffs to secure the safety of their congregation" such as permitting certain categories of people—such as police officers and registered security guards—to carry at Church without violating the place of worship exclusion. This does not relieve the burden the new law places upon Plaintiffs' religious practices.

Pastor Spencer testified that members of the Church's security team of congregants protect the congregation pursuant to a calling from God. Hired outside security, Spencer believes, is not an adequate substitute because such individuals would be working for a paycheck—not acting pursuant to a spiritual calling. For this reason, he believes hired security would be far less effective than the organic security team at protecting the flock. But it does not ultimately matter whether he is correct that hired security—armed or not—would effectively protect the congregation. Pastor Spencer and Church members have a religious belief that they, themselves, must protect the flock. Indeed, religious beliefs "need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."

In any event, the Church congregation includes—at most—only a handful of police officers or other individuals who might fit into a statutory exception. Even if these individuals were to volunteer to provide security at the Church, they could not conceivably protect the approximately 800 individuals who worship at the Church throughout each week—given that they have day jobs and "work a lot of hours." And to the extent the Church hired private security guards or police officers to protect the congregation, the financial burden would necessarily reduce the amount of ministry the Church could perform. This is precisely the sort of meddling in religious practices that courts find time and again violates the Free Exercise Clause. Further, like in Church of the Lukumi Babalu Aye, the State has not "questioned the sincerity" of Plaintiffs' religious beliefs….

The place of worship exclusion is neither neutral nor generally applicable and, therefore, must satisfy strict scrutiny…. Under its plain text, it restricts concealed carry in "any place of worship or religious observation." … [T]he place of worship exclusion is directed at religious activity. Careful drafting ensured that carrying of concealed weapons for religious reasons at place of worship is prohibited, while the same carrying in numerous other circumstances remains permissible. For these reasons, the place of worship exclusion is not a "neutral" law.

Nor is it generally applicable…. It specifically targets carrying of firearm motivated by religious beliefs while permitting concealed carry in relation to numerous secular activities….

The State asserts that it has a "purpose of the highest order in the protection of its citizens from gun violence." It explains that the statute prohibits carrying of firearms in locations that create "risks for gun violence" because they are "often busy, crowded, and dense locations where individuals are often seated or moving slowly." But other private property owners—such as proprietors of hair salons, retail stores, shopping malls, gas stations, office buildings, garages, and countless other private actors hosting secular activities—may decide for themselves whether to permit the carrying of firearms on their property. See N.Y. Pen. L. § 265.01-d(1) (prohibiting carry of firearm on private property only where property owner has not expressly permitted it).

In sum, on this record, Plaintiffs have demonstrated that the State permits countless other private actors hosting secular activities to do what a house of worship may not. The houses of worship exclusion is not a neutral law of general applicability….

Faced with Plaintiffs' showing that the houses of worship exclusion burdens their sincerely held religious practices pursuant to a policy that is not neutral or generally applicable, the State must demonstrate that the exclusion survives strict scrutiny—which is "the most rigorous of scrutiny." … To satisfy strict scrutiny, the government must show that "its restrictions on the plaintiff's protected rights serve a compelling interest and are narrowly tailored to that end." The standard is "not watered down[,] but really means what it says." Thus, a law that "targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases." …

Plaintiffs concede that the State "has a compelling interest in preventing violent crime." The State, however, fails to establish that the houses of worship exclusion is narrowly tailored to advance that interest. It argues that "in a sensitive location such as a religious institution, there is no narrower way to prevent" gun violence than "by ensuring that only trained individuals specifically tasked with protecting the community are armed." …

[But i]n an analogous case, the Supreme Court explained that "narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing [gun violence]." Where "the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too."

The State allows a broad swath of private property owners to decide whether to permit the otherwise-lawful carrying of firearms on their property. There is no evident justification for the view that secular business owners are more qualified than religious leaders to determine whether to allow armed self-defense on their property. Moreover, a bad-intentioned armed person looking to attack worshippers will not be deterred in the by the fact that the State can now add unlawful carry in a "sensitive location" to the slew of criminal charges that would stem from such an attack. The houses of worship exclusion is therefore not narrowly tailored to advance the State's interest in protecting citizens from gun violence. The State fails to satisfy strict scrutiny.

In sum, Plaintiffs have demonstrated, on this record, that the State has burdened their sincere religious practice pursuant to a policy that is not "neutral" or "generally applicable," and the State fails to demonstrate that its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. Plaintiffs are likely to prevail on the merits of their claims under the Free Exercise Clause….

That seems correct to me, given the facially discriminatory treatment of religious institutions. The court also concluded that the prohibition likely independently violated the Second Amendment, for reasons similar to those given in Judge Sinatra's earlier decision in Hardaway v. Nigrelli; and the court also concluded that the law violates the Establishment Clause (I'm more skeptical about that).

The court added:

ORDERED that this preliminary injunction is stayed pending appeal, consistent with Defendant Nigrelli's representation at the December 19, 2022, status conference that the stays entered by the Second Circuit in Antonyuk v. Hochul, No. 22-2908, and Hardaway v. Nigrelli, No. 222933 permit Plaintiffs to designate individuals otherwise authorized by law to carry a firearm to do so on church premises for the purposes of keeping the peace, without regard to whether they fall within any of the exceptions set forth in N.Y. Penal Law § 265.01e(3).