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Law360 (April 20, 2020, 4:50 PM EDT ) A New Mexico order banning places of worship from holding gatherings during the coronavirus pandemic doesn't violate an Albuquerque church's constitutional rights, a federal judge ruled, declining to follow a ruling in a similar case in Kentucky that deemed restrictions on Easter services unconstitutional.
U.S. District Judge James O. Browning on Friday declined Legacy Church Inc.'s attempt to block the state from imposing an April 11 order restricting churches, mosques, synagogues and other places of worship from having followers gather in groups of more than five people to help reduce the spread of COVID-19 in the state.
The New Mexico Department of Health's April 11 order didn't single out religious gatherings when it let retail stores, funeral homes and other essential businesses operate with gatherings of more than five people, because it restricted other secular gatherings like sporting events and conferences, the judge said.
"The April 11 order does not irrationally allow mass gatherings in retail stores while prohibiting them in churches, mosques, and synagogues," Judge Browning wrote.
There's also no evidence that the order targeted Christianity or religion generally or that it was acting contrary to a "compelling interest" of mitigating the pandemic, even though the timing of the order "nonetheless troubles the court," the judge said. New Mexico's order on April 11, the day before Easter, didn't specifically target Christianity and was instead a response to churches' "last-minute decisions to hold in-person services despite the escalating public health emergency," Judge Browning wrote.
"This justification is more plausible than the governor's desire to thwart Christianity's most sacred holiday," he wrote.
Legacy Church, a "mega-church" with nearly 20,000 members, sued on April 11, saying the health department's public health order violated its rights under the free exercise clause of the First Amendment and its right to peaceably assemble.
While the health department initially prohibited mass gatherings on April 6 but exempted religious places of worship, the state changed its tune the day before Easter, issuing another order on April 11 that removed the exemption on religious gatherings from the ban after COVID-19 cases skyrocketed.
In issuing the second order, New Mexico "undermines its interest and exceeds its constitutionally permissible powers when the state withholds allowances to a religious group following its belief, while bestowing those allowances to others, but there is no pandemic exception to fundamental liberties of the constitution," the church said in its motion for a temporary restraining order.
New Mexico argued that its order was a proper exercise of its police powers after it issued a state of emergency in March and that the church couldn't show how it was harmed by being able to livestream its services in compliance with state orders, saying the church "provides no explanation of why it cannot adapt its services."
Judge Browning said Friday he "respectfully declines to follow" the reasoning in a similar case decided on April 11 by U.S. District Judge Justin R. Walker, who determined that a Kentucky ban on church services in which congregants observe services in their cars at a church parking lot was unconstitutional.
Judge Walker, who was recently tapped by President Donald Trump to fill a seat on the influential D.C. Circuit, said the ban wasn't neutral because it allowed similar activities like drive-thru liquor sales. He said the ban amounted to the criminalization of an Easter celebration in a scene not dissimilar to a "dystopian novel, or perhaps the pages of The Onion."
But the main difference with Legacy Church's case is that the state's order doesn't permit activities similar to church gatherings.
"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," Judge Browning said Friday.
"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[sic] stores are shuttered," he continued.
Counsel and representatives for the parties did not respond to requests for comment.
New Mexico is represented by Nicholas M. Sydow of the state's attorney general's office.
Legacy Church is represented by Colin L. Hunter and Jordy L. Stern of The Barnett Law Firm PA.
The case is Legacy Church Inc. v. Kunkel et al., case number 1:20-cv-00327, in the U.S. District Court for the District of New Mexico.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
