Vince Torres: Kansas Church Granted TRO, New Mexico Church Denied

By Vince Torres, President & Executive Director

As reported last week, Legacy Church in Albuquerque filed a request for a temporary restraining order (TRO) in U.S. District Court following an unexpected revision to the Governor’s Public Health Order. Though the faith community had been voluntarily complying with the previous Order, the revisions removed the exception for churches, leading to confusion on the eve of Easter Sunday when the revised Order was released. The exception in question had allowed churches to use essential church members and staff to stream services and conduct socially distanced services like drive-ins and drive-through prayer lines. In response to the sudden change, some churches cancelled their Easter Sunday plans while others scrambled to modify them.

On Friday afternoon, U.S. District Court Judge James Browning denied Legacy Church’s request for a TRO, concluding that the Governor’s Order “does not violate Legacy Church’s First Amendment religious freedom rights, because the Order is neutral and generally applicable; and…the Order is a reasonable time, place, and manner restriction, and so does not violate Legacy Church’s First Amendment rights to assemble.”

On Saturday, however, a U.S. District Court Judge in Kansas granted a TRO against a similar Kansas Executive Order limiting church gatherings to 10 people. In his detailed opinion, Judge John Broomes noted:

“[T]he secular facilities that are still exempt from the mass gathering prohibition or that are given more lenient treatment, despite the apparent likelihood they will involve mass gatherings, include airports, childcare locations, hotels, food pantries and shelters, detoxification centers, retail establishments, retail food establishments, public transportation, job centers, office spaces used for essential functions, and the apparently broad category of ‘manufacturing, processing, distribution, and production facilities.’”

Unlike Judge Browning in the Legacy Church opinion, Judge Broomes determined that the Kansas Order was not neutral and generally applicable because it restricted religious practices while maintaining exemptions for secular activities with comparable health risks. Judge Broomes added:

“Based on the record now before the court, the most reasonable inference from this disparate treatment is that the essential function of religious activity was targeted for stricter treatment due to the nature of the activity involved, rather than because such gatherings pose unique health risks that mass gatherings at commercial and other facilities do not, or because the risks at religious gatherings uniquely cannot be adequately mitigated with safety protocols.”

With two seemingly conflicting rulings in these respective cases, it is clear that the government’s authority to regulate religious activity is still up for debate among members of America’s Judiciary. The federal Religious Freedom Restoration Act clearly provides that “laws of general applicability” (such as those found in the aforementioned state orders) may burden the free exercise of religion, but only if they advance a compelling governmental interest and represent the least restrictive means of doing so.

While there is no debating the fact that slowing the spread of COVID-19 represents a compelling governmental interest, questions certainly remain as to what constitutes the “least restrictive means” of burdening the freedom of religion. In Legacy’s case, the attorney’s argued that the Governor’s revised Order does not represent the least restrictive means given the fact that lesser restrictive means are available to retailers and other businesses. Judge Browning disagreed, stating that religious services could not be equated with essential business.

Despite Judge Browning’s ruling, New Mexico churches still benefited from the Legacy Church case. For example:

1. Thanks to the Legacy case, we now have an official statement from Secretary of Health Kathy Kunkel affirming that churches are “exempt from the ‘mass gatherings’ restriction to the extent necessary to provide remote services to their congregants.” Though the revised Public Health Order clearly states that all gatherings of 5 or more individuals in churches are prohibited, we thank Secretary Kunkel for making this reasonable concession so churches can continue to stream their services online, with the people needed to produce them.
2. Thanks to the Legacy case, we now have clarification and direction from Secretary Kunkel that drive-in and drive-through religious services are legal, “provided that people maintain social distancing.” Though the revised Public Health Order mentions “audiovisual means,” it does not address other creative services, and we thank Secretary Kunkel for this clarification.
3. Finally, thanks to the Legacy case, churches and other houses of worship can minister to their people this weekend without the fear and anxiety of potentially breaking the law in the process.

Clearly, legal action could have been prevented by better and more timely communication from the Governor’s Office. Moving forward, our hope is that all revisions to the Public Health Order will be communicated during the work week and at least 72 hours in advance of any gatherings impacted by those revisions.

When we work together, we can find common ground, and that is exactly what our people desperately need us to do right now.

#AllTogetherNM