Where Two Or More Have Gathered, Litigation Has Ensued: Maine Church Argues That Recent Decisions Compel The Conclusion That Maine’s Pandemic Capacity Restrictions On Assembly Violate The Religion Clauses of the First Amendment


 

Calvary Chapel of Bangor v. Mills, Governor of the State of Maine, No. 1:20-cv-00156-NT (D. Maine).

Calvary Chapel Church of Bangor, Maine has challenged pandemic-related capacity restrictions on church attendance since shortly after the state imposed those restrictions nearly a year ago.  

The church believes that Maine’s are now the most restrictive assembly limitations in the nation.

Following an appeal to the First Circuit and remand to the federal district court in Maine, Calvary Chapel now argues that recent decisions of the United States Supreme Court and the federal circuit courts of appeals compel the issuance of an injunction against the governor’s restrictions on church attendance.

The church asserts that the state’s pandemic related imposition of limits on church assembly, where similar limits are not imposed on secular entities and activities, unlawfully discriminates against Calvary Chapel of Bangor, in violation of the Free Exercise Clause of the First Amendment.  Moreover, the state’s restrictions impermissibly interfere with the church’s management of its own affairs and, as the restrictions preclude participation in religious services, they violate the Establishment Clause.  

Calvary Chapel of Bangor differs from other congregations that have engaged in challenges to pandemic-related measures.   Calvary Chapel not only serves as a church for community congregants, but also operates a residential program for persons seeking to renew their lives and recover from life-limiting conditions through, among other things, participation in religious assembly.

The pastor of Calvary Chapel of Bangor notes that not only is assembly commanded by scripture, but also that greater fervor is commanded during times of trouble  

The pastor submits that because almost 50 residents are always in place at the residential program, when those residents are called to church services, then community congregants cannot attend, as the gathering would exceed the Governor’s order’s limits.  

Conversely, if congregants were permitted to attend services, the residents would be precluded from doing so. Such a choice diminishes the dignity of all and undermines the effect of the residential treatment program, which envisions full acceptance within the larger community after completion of the program.

The pastor states he finds himself in an untenable situation, as he must choose between violating the law, which has criminal penalties, and violating his beliefs and obligations as minister.

The pastor points out that this choice is an impossible one, and is particularly troubling in a nation founded on principles of freedom of religious worship.

The governor of Maine’s response to the newly filed motion for injunctive relief has not yet been submitted, nor is there any date for hearing established


What follows are links to the Calvary Church brief and the pastor’s declaration and copies of opinions considering challenges to restrictions on Church attendance during the pandemic.

 

Here are links to Calvary Church’s recent submission to the court:

Calvary Chapel v. Mills Renewed Motion for Injunctive Relief

Calvary Chapel v. Mills Declaration of Ken Graves, Pastor

And here are links to recent opinions:

South Bay United Pentecostal Church v. Newsom, 592 US (Feb.5, 2021)

Calvary Chapel Bangor v Mills 1st Cir 2020

S Bay United Pentecostal Church v Newsom (SD Cal 2020) (Dec.)

High Plains Harvest Church v. Polis, 592 U.S. ( ) Dec. 15, 2020

Calvary Chapel Lone Mountain v Sisolak 9th Cir 2020

Calvary Chapel Dayton Valley v Sisolak 9th Cir 2020

Roman Catholic Diocese of Brooklyn v Cuomo 2020

Calvary Chapel Dayton Valley v Sisolak 140 S Ct 2603 2020

S Bay United Pentecostal Church v Newsom 140 S Ct 1613 207 L Ed 2d 154 2020

 

 

The Preacher Talked to Me and He Smiled: Supreme Court Upholds Injunction Permitting Minister’s Presence at Alabama Prisoner’s Execution

Commissioner v. Smith, No. 20A128, 592 U.S. ____ (February 11, 2021).


Justice Kagan, with three others, has opined that Alabama failed to meet the strict scrutiny test applicable under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Alabama’s global prohibition on ministerial presence at execution substantially burdens a prisoner’s religious exercise, and Alabama failed to demonstrate that this preclusion is the least restrictive means of advancing the compelling state interest in prison security.  As such, the injunction permitting the prisoner to have a religious presence at execution is proper and will not be dissolved.

Justice Thomas, without writing separately,  would have granted the petition to dissolve the injunction.

Justice Kavanaugh and Chief Justice Roberts would grant the petition as reflecting a non-discriminatory policy, but would encourage states to implement measures that would fulfill requests such as the inmate’s here and thereby avoid protracted litigation. 

 

Commissioner v. Smith, 20a128, 592 U.S.__(February 11, 2021)




Pour l’instant, ils ne parlent pas: Federal Judge Denies Social Media Platform Parler’s Request that Amazon Web Services Restore Its Service

Parler LLC v, Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash). Order denying preliminary injunctive relief entered January 21, 2021.


A federal court in Washington has denied Parler’s request that Amazon Web Services (AWS) be  ordered to resume web hosting service to social media platform Parler.  

 

The court found that the standards for preliminary injunctive relief, particularly with respect to a likelihood of success on the merits, had not been met. 

 

First, the court found that Parler had not established that it would prevail on an antitrust claim, as neither an agreement between AWS and Twitter, nor a restraint of trade had been shown. AWS has insisted no contact between AWS and competitor Twitter had occurred.   

 

Second, AWS’s pursuit of lawful remedies, such as might be found in the parties’ agreement,  cannot support a claim for tortious interference with business.  

 

Third, Parler was not substantially likely to prevail on its contract claim where Parler was admittedly in breach of its agreement with AWS and suspension or termination was a consequence of a breach under the parties’ agreement.  

 

Counsel admitted at hearing that damages could make Parler whole, making it impossible to perceive that irreparable harm would ensue if an injunction was not issued.  

 

The balance of equities did not favor Parler, as it was admittedly in breach of its contract with AWS. 

 

The court noted that AWS had offered evidence that AWS did not treat Parler and Twitter differently on the same facts, for different services are provided to each company.  

 

Finally, the court noted that no policy supports compelling AWS to provide a platform for speech that might incite violence.

 

Parler LLC v Amazon Web Services 2 21-cv-0031 BJR Order Denying Preliminary Injunction

“Sure sounds like a termination.”–Judge in Parler Dispute With Amazon Web Services Appears to Appreciate Impact, But Questions Need for Injunctive Relief

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031(BJR) (W.D. Wash). Argument concerning injunctive relief held January 14, 2021.


Today the U.S. District Court for the Western District of Washington heard arguments concerning whether Amazon Web Services (AWS) ought to be ordered to restore service to Parler, LLC, whose site was deplatformed on short notice provided on January 9 because, AWS believed, Parler was not ably managing removal of unacceptable content in compliance with its agreement with Amazon.

 

Counsel for Amazon downplayed any non-compliance on Amazon’s part, asserting that Parler had not and could not comply with its obligations whether AWS  had suspended or terminated Parler.

 

AWS noted that as of January 6, 2021, what had been long feared became painfully real in the attacks at the U.S. Capitol. AWS perceived a need for action.  

 

Amazon Web Services noted that AWS’ actions respecting Twitter differ from its actions with Parler because Amazon Web Services does not access or engage with Twitter’s live feed as it does with Parler.

 

Parler submitted that losses to Parler are irreparable.  Advertisers, the site’s sole revenue source, no longer provide income, and fifteen million account holders no longer can access Parler.

 

Although Parler offered that just recently Parler had been discussing adopting AWS’ software and obtaining venture capital, no counsel present would opine concerning whether their respective clients would be interested in further discussions.

 

Parler has admitted that some harms might be remedied by money damages, but pointed to the immediate present losses of income and customers as worthy of injunctive redress.

 

On inquiry by the court, counsel for Parler did not articulate a present emergency which would justify injunctive relief.

 

The court, without elaboration, promised its order would issue promptly.

Parler Resists War of Words with Amazon Web Services and Insists Parler Will Likely Go Out of Business Absent Judicial Intervention

Parler, LLC v Amazon Web Services, No. 2:21-cv-00031-BJR (W.D. Wash,).  Telephone conference with court set for 10 a.m. PST on January 14, 2021.


In Reply to Amazon Web Services’ (AWS) Opposition to Parler’s Motion for Injunctive Relief, Parler argues that AWS miscasts termination as suspension, a position negated by AWS’ statement to Parler that Parler could do nothing to be restored to service.

 

Parler offers that AWS never advised Parler what contractual obligation Parler had allegedly breached. Most significantly, AWS breached the contract by failing to adhere to the thirty day period before termination the agreement requires.

 

AWS has always been aware of, and never questioned, Parler’s proactive practices concerning problematic posts, which are reactive and use a jury system issues with posts.  Parler envisioned moving to prospective artificial intelligence screening in the coming year. Moreover, AWS expressed interest in Parler’s adoption of AWS’ proprietary software, an arrangement which, if consummated, would essentially marry the two entities.

 

Parler states that it has always responded to any posting issues presented to it by AWS.  When competitor Twitter terminated Donald Trump’s account and created a Parler account, mass migration from Twitter to Parler caused Parler not only to crash but to face a backlog of troublesome posts.

 

Parler worked diligently to address problematic material, advising AWS of its progress, and was all but finished with the backlog when AWS terminated service to Parler.

 

Parler notes that no one arrested in connection with the January 6th violence in the U.S. Capitol had a Parler account, An individual killed there had an account that was dormant since November.  The posting of videos by account holders does not establish that the poster was present at the Capitol.

 

Parler argues that AWS has succumbed to pressure to suppress conservative speech as well as to deny the President social media access. 

 

Parler further argues that AWS has unlawfully preferenced the bigger and wealthier Twitter, ensuring Twitter’s market dominance by forcing Parler out of business.

 

Surely AWS can be seen as having interfered with business relationships, Parler argues, as AWS’ termination of Parler interfered with Parler’s relationships with every one of its fifteen million users.

 

Section 230 of the Communications Decency Act does not operate as a bar to an antitrust action:  Section 230 immunizes speech, not anticompetitive conduct, which the Ninth Circuit has recognized.

 

Parler states that AWS’ termination has made it difficult for Parler to find a new web hosting partner, making it likely that Parler will go out of business absent judicial intervention.  

 

If the court fails to enjoin AWS, Parler submits, AWS’ termination will likely be fatal to Parler, but an injunction will require only that AWS provide services as required in its contract with Parler, balancing the equities in Parler’s favor.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.). Parler Reply (2021-01-13)

 

It’s not us, it’s them: Amazon Web Services States Parler’s Breach of Agreement with AWS Permitted Suspension, Denies Antitrust Violation, and Claims Immunity under Section 230 of the Communications Decency Act of 1996

Parler, LLC v. Amazon Web Services, No. 2:21-cv-00031 (BJR) (W.D. Wash.). Opposition to motion for injunction filed January 12, 2021.


Amazon Web Services (AWS) has opposed Parler’s motion for injunctive relief, asserting that its agreement with Parler permitted AWS to suspend or terminate Parler because of repeated troubling postings after the November election and after the January 6th eruption of violence in the Capitol.

 

AWS states that its agreement with Parler specifically permits the actions that it took. Amazon Web Services states that Parler was slow or failed to remedy threatening postings, and that when tens of thousands of posts went unaddressed, AWS was within its contractual rights to terminate or suspend Parler

 

Parler cannot state a claim for tortious interference with business relationships in the absence of a breach of contract, AWS reasons.  AWS states that Parler has not in fact been harmed, given Parler’s assertion that it would be offline for only half a day.

 

AWS argues that Parler cannot state a claim for violation of the Sherman Act where there is no evidence of any anti-competitive communication, let alone agreement, between AWS and Parler’s competitor Twitter.  Any difference in treatment between Parler and Twitter by AWS exists because of differences in AWS’s agreements with the two entities. 

 

Finally, and perhaps most importantly, AWS asserts that Section 230 of the Communications Decency Act of 1996 immunizes AWS from liability for any actions it has taken to remove offensive or harmful material from Parler, including suspension or termination..  The immunities conferred by Section 230 preclude Parler’s claims for breach of contract and anticompetitive conduct, AWS argues.

 

AWS states that injunctive relief is inappropriate where an injunction would inhibit or preclude AWS from entering into or policing its agreements.

 

AWS has submitted redacted copies of allegedly problematic postings from Parler and has submitted, with a request that they remain under seal, unredacted copies of such material.

 

Parler may submit a response today. At this writing no time for oral argument has been established.

Parler LLC v. Amazon Web Services, No. 2.21-cv-00031 (W.D. Wash.) Opposition to Motion for Injunction

David Versus Goliath (and Goliath). Parler Challenges Amazon Web Services’ Suspension as Anti-Competitive and in Breach of Contract

Parler LLC v. Amazon Web Services, No 2:21-cv-00031 (BJR) (W.D. Wash.) Verified Complaint filed January 11, 2021.


Amazon Web Services (AWS) has suspended webhosting services to Parler, a relative newcomer to the social media marketplace because, AWS has stated, AWS doubts Parler’s capacity to monitor postings that incite violence.

 

AWS suspended  Parler almost immediately after Parler’s competitor Twitter permanently terminated the account of Donald J Trump.  This  termination prompted a mass migration of customers from Twitter to Parler as well as a significant spike in new customers. 

 

AWS towers above other web hosting services globally.  By comparison with the shuttered Parler, Parler observes that AWS has promised Twitter timeline and enhanced services.

 

Parler asserts in its Complaint in federal court in Washington that because of the suspension, which Parler says has been presented like a termination, AWS has irreparably damaged Parler’s business and reputation.  

 

Even if Parler is able to find another platform, Parler avers, the time and other costs associated with rewriting Parler’s AWS-compatible code will be extraordinary.

 

Parler alleges that AWS’ agreement to enhance services to Twitter while forcing Parler from the marketplace violates the Sherman Antitrust Act. 

 

Parler also asserts that by effectively terminating Parler without the thirty day’s notice required by the agreement between the two, AWS has breached its agreement with Parler.  

 

Parler denies any breach of its agreement with AWS, stating that it removed any allegedly unacceptable comments that AWS brought to Parler’s attention.  Parler observes that similar content has been retained without comment on Twitter.

 

Briefing concerning injunctive relief will close January 13th.  A time for oral argument has not been set.

Parler LLC v. Amazon Web Services, No. 2:21-cv-00031 (W.D. Wash.) Verified Complaint

No Place Like Stay-at-Home for the Holidays: New York Continues to Defend Against Free Exercise Challenges to Restrictions Imposed on “Houses of Worship”


Agudath Israel of America, et al. v. Cuomo, No. 20-3571; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3520 (2nd Cir.) December 28, 2020.


New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020

From the Same Hymnal: Message of Roman Catholic Diocese of Brooklyn v. Cuo to Be Adopted in Ninth and Tenth Circuits


High Plains Harvest Church v. Polis, 592 U.S. ___ , December 15, 2020; Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.), December 15, 2020.


This week both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit affirmed the recent New York determination that pandemic restrictions on public gatherings cannot be more restrictive for religious gatherings than for others.  

In the Calvary Chapel case, the Ninth Circuit has concluded that petitioners are likely to succeed on the merits in their challenge to Nevada’s pandemic-related public gathering restrictions because the disparate treatment accorded to secular and religious groups cannot survive strict scrutiny analysis,  Permitting secular activities at 50% of capacity while limiting religious gatherings to 50 persons without reference to capacity unduly burdens religion.  Pending review in the federal trial court, the Ninth Circuit has granted injunctive relief ordering that no more harsh restriction than 25% of fire code capacity may be attached to in-person religious gatherings.  

The Supreme Court has reiterated that the decision and analysis applied to restrictions on religious services announced in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S.  _____, November 25, 2020, and has directed the U.S. Court of Appeals for the Tenth Circuit to address the challenge to Colorado’s pandemic-related restrictions accordingly.  

Three justices dissented because they believe that the case is moot, as Colorado removed the challenged restrictions following the Court’s November determination concerning New York’s emergency measures.  

JustLawful Observation:  Some may be consoled that Christmas and Chanukah gatherings may have been saved by the Supreme Court’s intervention in New York, which will be applied elsewhere, while others may question why it required the intervention of the nation’s highest court to do what custom and practice, even in a public emergency, once might have dictated.  The more comforting lesson may be that the Supreme Court has rejected the states’ arguments that the Court’s early 20th century views of states’ expansive emergency powers permits unequal treatment of religious and secular activities.   Jacobson v. Massachusetts, 197 U.S. 11 (1905)  was and remains good law, but Jacobson did not decide the questions presented in the present cases, and the Court is not willing to expand states’ powers beyond the limits of the First Amendment. 

High Plains Harvest Church v. Polis 20A105 December 15, 2020

Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.) December 15, 2020

Roman Catholic Diocese of New York v. Cuomo 20A87 (U.S.) November 25 2020

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

An Even More Perfect Union: Committees of Conservative, Progressive and Libertarian Thinkers Try Their Hands at Drafting a U.S. Constitution Consonant with Their Respective Political Philosophies


It is inescapably apparent, all too often painfully so, that there is great discontent within our nation that runs not just to its operations but to its foundations.  So pervasive is this malaise that its presence may soon surpass the status once held by the weather:  everyone complains about it, but no one does anything about it. 

Not so at the National Constitution Center, which recently published three proposed drafts of a new U.S. Constitution, each drawn in accordance with the points of view of three separate committees of noted conservatives, progressives, and libertarians.

The conservatives, not unsurprisingly, are not as irked by the Founders’ handiwork than others, yet they are vehement in urgining the installation of reforms which would temporally limit public office and which would restore to the Senate an obligation to debate the common good.  

The conservative focus is on minimizing opportunities for mischief that ensue when short term gains are advanced at substantial costs to long term stability in service of shared goals.

The progressives focus on their overarching concern with true democracy and equality, with a particular interest in coming to terms with what, in fact and in practice, are rights, which rights ought to be protected, and in what manner.

Libertarians have even less cavil with the original Constitution, thinking initially that the committee would merely review the existing document and add to each Article and Amendment a succinct “we mean it.”  The were not so pleased with themselves, however, as to forsake drafting with an emphasis on curtailing the existence and exercise of federal powers. 

As such efforts go, this project seems a good one, efforts which might serve as starting points for the seemingly ever more elusive civil discussions that are hoped for but too infrequently had.  

The recently published drafts, with commentary, may be found at the links below.

The_Conservative_Constitution

The_Progressive_Constitution

The_Libertarian_Constitution_1