Two New Jersey Houses of Worship are taking legal action to prevent limitations to their services.

The latest news is that in New Jersey two houses of worship have approached the United States Supreme Court to request an injunction against New Jersey state’s restrictions and limitations on religious services.  Part of the team representing the houses of worship are from Thomas More Society, attorneys Christopher Ferrara, Michael McHale and Stephen Crampton.  

Governor Phil Murphy introduced pandemic guidelines which allows the state to limit the number of people taking part in indoor religious services.   It allows for 25% of the building’s maximum occupancy and/or less than 150 people but never less than 10 people.

The lawsuit

Thomas More Society is a public interest law practice which concentrates on issues of religious liberties.  They have filed a lawsuit on behalf of a Lakewood rabbi and a North Caldwell priest.  The lawsuit argues that these restrictions are in fact unconstitutional.  They argue that the state does allow a whole range of secular activities, even playing indoors at a Fair Go Casino, and gatherings for business and schools which are at the 100 percent or 50% occupancy level and without a fixed number.  

In the suit it says “If social distancing, proper hygiene practices, and other health and safety protocols are sufficient to allow numerous secular gatherings above 25% of capacity, they are good enough for ..religious gatherings, too.”

The state’s argument is that congregating at houses of worship can be compared to gatherings at movie theatres and concert venues and these places have even stricter limitations applied to them.   They argue that in fact the restrictions on houses of worship are actually more lenient. This argument was accepted by the federal district court when they ruled against the houses of worship.  

The houses of worship are making an appeal to the United States Court of Appeal for the Third Circuit, in which they sought an injunction pending the appeal.   The injunction was denied by the Third Circuit so the plaintiffs filed the latest appeal to the United States Supreme Court Justice, Samuel Alito who is in charge of the New Jersey Court’s injunction requests.  

As far as the plaintiffs are concerned, the district court was not correct to compare houses of worship to theatres and concert halls.

The suit puts forward the following, “The question is whether any unprohibited activities are at least as risky as religious activities”. And goes on to say that “under Governor Murphy’s spate of executive orders, a vast swath of permitted secular activities manifestly endanger the government’s interest – ‘containing the virus’ – to the same or greater degree as houses of worship, and yet none are as restricted as houses of worship,”.  Referring to examples of manufacturers, schools, warehouses and food processing plants.

Another point of contention put forward by the plaintiffs is that the state’s mask rule in houses of worship is unconstitutional.   It is possible to remove the masks during services only briefly when it is deemed necessary to perform a religious ritual. However, “numerous open-ended exemptions from mask-wearing are afforded for secular reasons such as health, practicability, exercise, office work, and more, with no temporal limitation to a brief moment.”

The suit argues that “New Jersey’s scheme is a blatant violation of this Court’s promise of equality for religious observers.”

On November 20th the injunction application was filed.  On November 28th Samuel Alito ordered the state to respond by December 3rd.  and the plaintiffs to reply the following day.

Similar lawsuit in New York

In a case in New York, on November 25th, the Supreme Court awarded an injunction to orthodox Jewish and Catholic parties against limitations on houses of worship.   The arguments in this case were similar in whether houses of worship are comparable to restricts made to theatres and concert halls or to businesses which have fewer restrictions applied to them.

In New York, they had a limited attendance at religious services, less than 10 persons or 25% of the maximum occupancy in an area with very high rates of Covid infection, and the lesser of 25 people or 33% of occupancy in an area with lower rates of Covid infection.  The plaintiffs here had disputed only the 10- and 25- person limit which was overturned by the Court.  The 25% and 33% occupancy limits were left in place.  

However, in New Jersey the plaintiffs are arguing that there is a violation of the “constitutional guarantees of religious liberty, freedom of speech and freedom of assembly”.   They are requesting to have the numerical and percentage of occupancy restrictions annulled.   They argue that because many so called “essential” non-retail firms are allowed 100 percent occupancy, they should allow at the very least 50% occupancy which is the limit placed on “essential” retail businesses.   

The suit argues that “What is good for schools, factories, homeless shelters, outdoor crowds, professional sports, and barber shops, is good for worship too.”

It is not a sure thing that the Supreme Court will rule on this injunction.  It may well depend on whether the Supreme Court sees the situation in New Jersey as being significantly different from the case in New York.

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