Court filing

Motion for Temporary Restraining Order and Preliminary Injunction — Calvary Chapel v. Mills (D. Me.)

Filed May 5, 2020 in Calvary Chapel of Bangor v. Mills; one of 5 filings from this case.

Record facts

Court	UNITED STATES DISTRICT COURT
Filed	2020-05-05

UNITED STATES DISTRICT COURT · No. 1:20-cv-00156-NT · Doc. 3 · 2020-05-05 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Bangor Division
CALVARY CHAPEL OF BANGOR,
)

)

Plaintiff,

)

)
v.

)
Case No. ________________

)
JANET MILLS, in her

)
official capacity as Governor of the
)
State of Maine,

)

Defendant.

)
[R]estrictions inexplicably applied to one group and exempted from another do little to further
these goals [“to lessen the spread of the virus or . . . protect the Commonwealth’s citizens”] and
do much to burden religious freedom. Assuming all of the same precautions are taken, why is
it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning
prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why
can someone safely interact with a brave deliverywoman but not with a stoic minister? The
Commonwealth has no good answers.1
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION WITH INCORPORATED MEMORANUM OF LAW

Pursuant to Fed. R. Civ. P. 65 and L.R. 7, Plaintiff, CALVARY CHAPEL OF BANGOR
(“Calvary Chapel” or the “Church”), moves this Court for a Temporary Restraining Order (TRO)
and Preliminary Injunction (PI) against Defendant, JANET MILLS, in her official capacity as
Governor of the State of Maine (“Governor Mills” or the “State”), as set forth below and in Calvary
Chapel’s contemporaneously filed Verified Complaint.
URGENCIES JUSTIFIYING TEMPORARY RESTRAINING ORDER
In its Prayer for Relief in the Verified Complaint, Calvary Chapel seeks a TRO restraining
and enjoining Governor Mills and her designees from unconstitutionally enforcing and applying

1 Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, 2020 WL 2111316, at *4 (6th Cir. May 2,
2020).
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the various COVID-19 Executive Orders (collectively “GATHERING ORDERS”) purporting to
prohibit Calvary Chapel, on pain of criminal sanctions, from gathering for worship at Calvary
Chapel, regardless of whether Calvary Chapel meets or exceeds the social distancing and hygiene
guidelines pursuant to which the State disparately and discriminatorily allows so-called “essential”
commercial and non-religious entities (e.g., liquor stores, marijuana dispensaries, warehouse
clubs, ‘big box’ and ‘supercenter’ stores) to accommodate gatherings of more than 10 people—
indeed, with no numerical limit—without threat of criminal sanctions. As shown in the Verified
Complaint, the GATHERING ORDERS have been interpreted, applied, and enforced, such that
Maine State Police have threatened to impose criminal sanctions against religious gatherings,
regardless of whether social distancing and personal hygiene recommendations are practiced.
At around the same time as the GATHERING ORDERS were being used to threaten
criminal sanctions on Calvary Chapel, officials in other jurisdictions had similarly threatened to
impose criminal sanctions on religious gatherings and have been enjoined by federal courts from
enforcing such orders:
(1) The Sixth Circuit Court of Appeals has issued an emergency injunction pending
appeal prohibiting the Kentucky Governor from enforcing prohibitions on religious
worship services. See Maryville Baptist Church, Inc. v. Beshear, -- F.3d --, 2020
WL 2111316 (6th Cir. May 2, 2020) [hereinafter Maryville Baptist]. In that appeal
challenging orders similar to Governor Mills’ orders here, the Sixth Circuit stated
that “[t]he Governor’s actions substantially burden the congregants’ sincerely held
religious practices—and plainly so.” Id., at *2 (emphasis added). Additionally,
“[t]he way the orders treat comparable religious and non-religious activities
suggests that they do not amount to the least restrictive way of regulating the
churches.” Id., at *2 (emphasis added).

(2) The Western District of Kentucky found that the mere threat of such criminal
sanction warranted a TRO. See On Fire Christian Center, Inc. v. Fischer, No. 3:20-
cv-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020) [hereinafter On Fire].
The On Fire TRO enjoined the Mayor of Louisville from “enforcing, attempting
to enforce, threatening to enforce, or otherwise requiring compliance with any
prohibition on drive-in church services at On Fire.” Id. at *1 (emphasis added).

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(3) The District of Kansas issued a TRO enjoining Kansas officials from enforcing
its discriminatory prohibition on religious gatherings and required the government
to treat “religious” worship services the same as other similar gatherings that are
permitted. See First Baptist Church. v. Kelly, No. 20-1102-JWB, 2020 WL
1910021, *6–7 (D. Kan. Apr. 18, 2020)[hereinafter First Baptist]. The First Baptist
TRO specifically stated that the government’s disparate treatment of religious
gatherings was a violation of the Free Exercise Clause because it showed that
“religious activities were specifically targeted for more onerous restrictions
than comparable secular activities,” and that the churches had shown irreparable
harm because they would “be prevented from gathering for worship at their
churches” during the pendency of the executive order. Id. at *7–8 (emphasis added).
Thus, the court enjoined Kansas from enforcing the gathering bans.

Here, Governor Mills and Maine State Police have similarly threatened Calvary Chapel
with criminal sanctions for hosting in-person religious gatherings. Additionally, the Maine State
Police—acting under the direction of Governor Mills’ orders—has publicly declared that it would
enforce the Governor’s orders and has threatened to impose criminal sanctions on those found in
violation of them. Absent emergency relief from this Court, Calvary Chapel, its pastor, and
all congregants will suffer irreparable injury from the threat of criminal prosecution for the
mere act of engaging in the exercise of religion.

Calvary Chapel prays unto this Court to issue a TRO enjoining Governor Mills from
similarly enforcing, attempting to enforce, threatening to enforce, or otherwise requiring
compliance with any prohibition on religious gatherings. Calvary Chapel does not seek, at this
emergent stage, to undermine the entirety of Governor Mills’ efforts to prevent the spread of
COVID-19 in the State. Calvary Chapel merely seeks to be free from the unconstitutionally
unequal application of the GATHERING ORDERS in such a way that the Church and its
pastor and congregants are threatened with criminal sanctions for simply having a church
service. Absent emergency relief from this Court, Governor Mills will continue to threaten Calvary
Chapel with criminal sanctions, including this Sunday, by targeting Calvary Chapel’s religious
gatherings for discriminatory treatment.
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MEMORANDUM OF LAW IN SUPPORT
To obtain a TRO or PI, Calvary Chapel must demonstrate it has a strong likelihood of
success on the merits, that it will suffer irreparable injury absent the order, that the balance of the
equities favors the order, and that the public interest is served by the Court’s issuing the order. See
Bl(a)ck Tea Soc’y v. Boston, 378 F.3d 8, 11 (1st Cir. 2004); Bourgoin v. Sebelius, 928 F. Supp. 2d
258, 267 (D. Me. 2013) (“The standard for granting a temporary restraining order is the same as
for a preliminary injunction.”). Calvary Chapel easily satisfies each of these elements factually
and legally. (Calvary Chapel hereby incorporates by reference the allegations of its Verified
Complaint, filed contemporaneously herewith, as its statement of facts in support of this motion.)
I.
CALVARY CHAPEL IS LIKELY TO SUCCEED ON THE MERITS OF ITS
CLAIM THAT GATHERING ORDERS ARE UNCONSTITUTIONAL.
A.
The GATHERING ORDERS Violate Calvary Chapel’s First Amendment
Rights to Free Exercise of Religion and Should Be Restrained.
Though the State might not view church attendance as fundamental to the religious beliefs
of Calvary Chapel, its opinion is irrelevant to the protections afforded to Calvary Chapel’s
sincerely held religious beliefs. Calvary Chapel’s “religious beliefs need not be acceptable, logical,
consistent, or comprehensible to others in order to merits First Amendment protection.” Thomas
v. Rev. Bd. of Ind. Emp. Security Div., 450 U.S. 707, 714 (1981). Indeed, “[a]t a minimum, the
protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all
religious beliefs or regulates or prohibits conduct because it is undertaken for religious
reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993)
(emphasis added). “The principle that government, in pursuit of legitimate interests, cannot in a
selective manner impose burdens only on conduct motivated by religious belief is essential to the
protection of the rights guaranteed by the Free Exercise Clause.” Id. at 543. Prohibiting Calvary
Chapel from hosting, and its members from attending, religious services where other non-religious
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gatherings are permitted under similar circumstances “violat[es] the Free Exercise Clause
beyond all question.” On Fire, 2020 WL 1820249, at *6 (emphasis added). Even in a time of
crisis or disease, see Jacobson v. Massachusetts, 197 U.S. 11 (1905), the First Amendment does
not evaporate. Indeed, “even under Jacobson, constitutional rights still exist. Among them is the
freedom to worship as we choose.” On Fire, 2020 WL 1820249, at *8; see also Terminiello v. City
of Chicago, 337 U.S. 1, 27, 31, 38 (1949).
The GATHERING ORDERS plainly impose significant burdens on Calvary Chapel’s
religious beliefs. Indeed, “[o]rders prohibiting religious gatherings, enforced by police officers
telling congregants they violated a criminal law . . . amount to a significant burden on worship
gatherings,” “and plainly so.” Maryville Baptist, 2020 WL 2111316, at *2 (emphasis added).
1.
Burdens on sincerely held religious beliefs are subject to strict scrutiny
if neither neutral nor generally applicable.

“[A] law that is neutral and of general applicability need not be justified by a compelling
government interest even if the law has the incidental effect of burdening a particular religious
practice.” Lukumi, 508 U.S. at 531. But, as here, “[a] law failing these requirements must be
justified by a compelling governmental interest and must be narrowly tailored to advance that
interest,” id. at 532, and “will survive strict scrutiny only in rare cases.” Id. at 546. The
GATHERING ORDERS plainly fail this test.
2.
The GATHERING ORDERS are neither neutral nor generally
applicable.
a.
The GATHERING ORDERS are not neutral.
“Although a law targeting religious beliefs as such is never permissible . . . if the object of
the law is to infringe upon or restrict practices because of their religious motivation, the law is not
neutral.” Lukumi, 508 U.S. at 533. To determine neutrality, courts look to the text of the law “for
the minimum requirement of neutrality is that a law not discriminate on its face.” Id. But, “[f]acial
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neutrality is not determinative. The Free Exercise Clause extends beyond facial discrimination
[and] forbids subtle departures from neutrality.” Id. at 534. This is so because, as here, “[o]fficial
action that targets religious conduct for distinctive treatment cannot be shielded by mere
compliance with facial neutrality.” Id. For the First Amendment prohibits hostility that is “masked,
as well as overt.” Id. The GATHERING ORDERS are not facially neutral, and even if they were,
they represent subtle departures from neutrality by treating Calvary Chapel’s religious gatherings
of more than 10 individuals differently than similar non-religious gatherings. In fact, as the Sixth
Circuit just held, “general bans that cover religious activity when there are exceptions for
comparable secular activities” fail the test of neutrality and represent “several potential
hallmarks of discrimination.” Maryville Baptist, 2020 WL 2111316, at *3 (emphasis added).
The GATHERING ORDERS fail even cursory facial examination. They expressly target
“religious” or “faith-based” gatherings for disparate treatment. (V.Compl. ¶ 26, EXS. B, C.) Yet,
in the very same text of the GATHERING ORDERS, businesses such as liquor stores, warehouse
clubs, supercenter stores, marijuana dispensaries, and even “non-essential” stores are exempted
from the broad prohibitions. (V.Compl. ¶¶ 28, 38, EX. E.) When the government “has targeted
religious worship” for disparate treatment—such as attending religious worship services—while
“not prohibit[ing] parking in parking lots more broadly—including, again, the parking lots of
liquor stores,” it is not neutral. On Fire, 2020 WL 1820249, at *6. Furthermore, here, as in First
Baptist, the “orders begin with a broad prohibition against mass gatherings [but] proceed to carve
out broad exemptions for a host of secular activities, many of which bear similarities to the sort
of personal contact that will occur during in-person religious services.” 2020 WL 1910021, at
*5 (emphasis added). In Maryville Baptist, too, the Sixth Circuit stated that such a system of
exemptions for all gatherings but religious gatherings fails the neutrality test because “restrictions
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inexplicably applied to one group and exempted from another do little to further these goals and
do much to burden religious freedom.” 2020 WL 2111316 at *4. Governor Mills expressly targeted
churches, threatening criminal prosecution. At the same time, no similar action is directed towards
people in liquor stores, in Walmart, in marijuana dispensaries, or even in “non-essential”
business. The GATHERING ORDERS are not neutral.
b.
The GATHERING ORDERS are not generally applicable.

In determining general applicability, the courts focus on disparate treatment of similar
conduct. See Lukumi, 508 U.S. at 542. “All laws are selective to some extent, but categories of
selection are of paramount concern when a law has the incidental effect of burdening religious
practice.” Id. The textbook operation of a law that is not generally applicable is one where
“inequality results” from the government’s “decid[ing] that the governmental interests it seeks to
advance are worthy of being pursued only against conduct with religious motivation.” Id. at 543
(emphasis added). In Lukumi, the Supreme Court held that a law “fall[s] well below the minimum
standard necessary to protect First Amendment rights” when the government “fail[s] to prohibit
nonreligious conduct that endangers these interests in a similar or greater degree” than the
prohibited religious conduct. Id. (emphasis added).

This is precisely the effect of the GATHERING ORDERS. First, they purport to prohibit
all “gatherings of more than 10 people,” but then exclude large crowds and masses of people
gathered at numerous businesses and other non-religious entities. (V.Compl. ¶¶ 27–38, EXS. B-
D.) Their text makes it plain that “faith-based” gatherings of more than 10 individuals are
prohibited, but large numbers of people may gather at liquor stores, casinos, warehouse and
supercenter stores, shopping malls, and marijuana dispensaries as but a few examples. (Id.)
Moreover, non-retail businesses may accommodate large gatherings of employees and customers
during all hours if they observe distancing and hygiene recommendations. (Id.) Furthermore, non-
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religious gatherings at “non-essential” retail businesses are permitted for employees and non-
customer persons if distancing and hygiene guidelines are. (Id.) But “religious” gatherings of 11
people are still prohibited, no matter how large the facility or how long the gathering lasts, even if
social distancing, enhanced sanitizing, and personal hygiene guidelines are followed religiously.
If large gatherings at liquor, warehouse, and supercenter stores, marijuana dispensaries, casinos,
and even “non-essential” retail businesses are not prohibited—and distancing and hygiene
practices are only required “to maximum extent practicable”—even though endangering citizens
(or not) to an equal degree, then it is obvious “religious” gatherings have been targeted for
discriminatory treatment. Such a blatant discriminatory application of the GATHERING
ORDERS “falls well below the minimum standard” the First Amendment demands. Lukumi, 508
U.S. at 543; see also On Fire, 2020 WL 1820249, at *6 (holding that government regulation is not
generally applicable when it targets religious gatherings with “orders and threats” but does not
apply the same orders and threats to similar non-religious conduct). As Maryville Baptist held,
Assuming all of the same precautions are taken, why is it safe to wait in a car for a
liquor store to open but dangerous to wait in a car to hear morning prayers? Why
can someone safely walk down a grocery store aisle but not a pew? Any why
can someone safely interact with a brave deliverywoman but not with a stoic
minister? The Commonwealth has no good answers.

2020 WL 2111316, *4. The GATHERING ORDERS are not generally applicable.
B.
The GATHERING ORDERS Violate the Establishment Clause.
“If there is any fixed star in our constitutional constellation, it is that no official, high
or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State
Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). Where, as here, Calvary
Chapel seeks to be free from disparate treatment by the State, the very core of the Establishment
Clause is at issue. “An attack founded on disparate treatment of “religious” claims invokes what
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is perhaps the central purpose of the Establishment Clause—the purpose of ensuring
governmental neutrality in matters of religion.” Gillette v. United States, 401 U.S. 437, 449
(1971) (emphasis added). Indeed, the Establishment Clause “affirmatively mandates
accommodation, not merely tolerance, of all religions, and forbids hostility towards any.” Lynch
v. Donnelly, 465 U.S. 668, 673 (1984). That mandate of preventing hostility towards religions is
equally present in times of exigent circumstances, such as COVID-19. For, as “[a]n instrument of
social peace, the Establishment Clause does not become less so when social rancor runs
exceptionally high.” Lund v. Rowan Cnty., 863 F.3d 268, 275 (4th Cir. 2017) (emphasis added).

But, the principle of neutrality requires that this Court analyze whether the government’s
motive in applying disparate treatment to religious gatherings, as opposed to similar non-religious
gatherings, is not merely a pretext or a sham. See, e.g., McCreary Cnty. v. ACLU of Ky., 545 U.S.
844, 864 (2005) (holding that the government’s motive for its actions “has to be genuine, not a
sham”). In determining whether the government’s motive represents a sham, courts often look to
the progression of the government’s actions. See id. at 866 (declining to accept the government’s
proposition that “the last in a series of government actions” is determinative for whether its actions
offend the Establishment Clause). Here, the progression of the State’s actions demonstrate that
religious gatherings were “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,” and “the disparity has been imposed without any apparent explanation
for the differing treatment of religious gatherings.” First Baptist, 2020 WL 1910021, at *7.

Indeed, the State started with the general position that all “gatherings of more than 10
people” were prohibited, including “faith-based” gatherings. (V.Compl. ¶ 26, EX. B.) But, in the
next breath, the State opened a broad category of exemptions for “grocery and household goods,”
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“home repair and hardware stores,” and “big box” stores to continue operations as being deemed
“essential.” (V.Compl. ¶ 28.) On March 24, the State clarified its initial gathering prohibition,
making it explicitly clear that “faith-based” gatherings were still prohibited but that similarly
situated “essential” and “non-essential” businesses could continue accommodating crowds and
masses if social distancing and hygiene practices were followed. (V.Compl. ¶¶ 27–31, EX. C.)
Then, on April 2, the State made it abundantly clear that it would enforce Governor Mills’
GATHERING ORDERS against churches and religious gatherings by having the State Police
release an Enforcement Memorandum threatening criminal penalties and sanctions for violation
of the GATHERING ORDERS. (V.Compl. ¶ 51, EX. I.)

Perhaps sensing that arresting pastors, imposing criminal sanctions on them, and hailing
them into judicial tribunals for the act of hosting worship was problematic, Governor Mills has
released speculative, future plans permitting churches to potentially begin opening in May, if she
deems health criteria sufficient in the state. (V. Compl. ¶48, EX. H.). That document reiterates that
churches may only have gatherings (i.e., worship services) if they abide by the Governor’s 10-
person limit, and then “benevolently” informs Calvary Chapel that it may conduct worship services
approved by the government—such as “drive-in, stay-in-your-vehicle church services”—so long
as no one actually assembles together in person. (Id.)

The progression of the State’s actions was a sham at the start and remains unconstitutional
even after its “benevolent” instructions for ‘proper’ worship during COVID-19. Its purpose in
treating religious gatherings differently from the start was a sham because there is no evidence that
religious gatherings “pose unique health risks that mass gatherings at commercial and other
facilities do not,” First Baptist, 2020 WL 1910021, at *7, or “because the risks at religious
gatherings uniquely cannot be adequately mitigated with safety protocols” such as those at liquor
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stores or other “essential” stores that may continue to operate without numerical limitation or
scrutiny. Id. Indeed, as the Sixth Circuit stated, “We doubt the reason a group of people go to one
place has anything to do with it. Risks of contagion turn on social interaction in close quarters; the
virus does not care why they are there.” Maryville Baptist, 2020 WL 2111316, *4 (emphasis
added). Thus, treating Calvary Chapel and other religious gatherings differently was a sham from
the start and remains constitutionally infirm even now. Indeed, the government does not have
the authority to, with the stroke of a pen, declare churches and attendance at church to be
“non-essential” and impose criminal sanctions on Calvary Chapel for failing to abide by that
government-imposed prescription of orthodoxy. The Constitution demands more.
C.
The GATHERING ORDERS Restrict Calvary Chapel’s First Amendment
Rights to Speech and Assembly and Should Be Restrained.
1.
The GATHERING ORDERS discriminate against Calvary Chapel’s
speech rights and rights to assemble on the basis of content.
“Content-based laws—those that target speech on its communicative content—are
presumptively unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling government interests.” Reed v. Town of Gilbert, 135 S. Ct.
2218, 2226 (2015). “Some facial distinctions based on a message are obvious, defining regulated
speech by particular subject matter, and others are more subtle, defining regulated speech by its
function or purpose. Both distinctions are drawn based on the message a speaker conveys, and,
therefore, are subject to strict scrutiny.” Id. S. Ct. at 2227 (emphasis added). Put simply, the
Supreme Court handed down a firm rule: laws that are content based on their face must satisfy
strict scrutiny. Id. Importantly, this firm rule mandating strict scrutiny of facially content-based
restrictions of speech applies regardless of the government’s alleged purpose in enacting the law,
even if the alleged purpose arises from a time of purported emergency. See id. (“On its face, the
[law] is a content-based regulation of speech. We thus have no need to consider the
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government’s justifications or purposes for enacting the [law] to determine whether it is
subject to strict scrutiny.”) “A law that is content based on its face is subject to strict scrutiny
regardless of the government’s benign motive, content-neutral justification, or lack of animus
toward the ideas contained in the regulated speech.” Id.

This Court need look no further than the text of the GATHERING ORDERS to determine
that they are content-based restrictions on constitutionally protected liberties. The GATHERING
ORDERS purport to prohibit “all gatherings of more than 10 people,” except a gathering of more
than 10 people is permissible without scrutiny or threat of sanction at many retail businesses
deemed “essential,” and at many more professional and retail businesses deemed “non-essential,”
none of which are required to observe distancing and hygiene guideless except “to maximum
extent practicable.” (V.Compl. ¶¶ 27–32, EXS. B, C, D.) Thus, the State found numerous
categories of businesses for which large numbers of people may gather without restraint, but
expressly prohibited the constitutionally protected assemblies or “gatherings” of “faith-
based” groups. Yet, the State has targeted Calvary Chapel’s “faith-based” gatherings, prohibited
Calvary Chapel from engaging in such gatherings and threatened to continue imposing such
criminal sanctions for engaging in such “faith-based” gatherings. But the State has created
carveouts for gatherings of more than 10 individuals at liquor, warehouse, and supercenter stores,
marijuana dispensaries, casinos, and countless other “non-essential” businesses. (V.Compl. ¶¶ 27–
32, EXS. B, C, D.) That is a textbook content-based restriction on Calvary Chapel’s speech. It
must therefore satisfy strict scrutiny, which it cannot do. (See infra section I.E.)
D.
The GATHERING ORDERS Cannot Withstand Strict Scrutiny.

Because the GATHERING ORDERS substantially burden Calvary Chapel’s sincerely held
religious beliefs, are neither neutral nor generally applicable, and are a content-based restriction
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on Calvary Chapel’s speech and assembly rights (see supra sections I.A–C), they must survive
strict scrutiny. The State is therefore subject to “the most demanding test known to constitutional
law.” Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (quoting City of Boerne v. Flores, 521
U.S. 507, 534 (1997)). In fact, “it is the rare case in which a . . . restriction withstands strict
scrutiny.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2236 (Kagan, J., concurring) (quoting
Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015)) (emphasis added). Indeed, “strict-
scrutiny review is strict in theory but usually fatal in fact.” Bernal v. Fainter, 467 U.S. 216,
219 n.6 (1984) (emphasis added). This is not that rare case, and strict scrutiny here condemns the
GATHERING ORDERS to the appropriate constitutional grave.
1.
The State’s unconstitutional application of the GATHERING
ORDERS and discriminatory treatment of “religious” gatherings is not
supported by a compelling interest.
When “[a] speech-restrictive law with widespread impact” is at issue, “the government
must shoulder a correspondingly heavier burden and is entitled to considerably less
deference in its assessment that a predicted harm justifies a particular impingement on First
Amendment rights.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct.
2448, 2472 (2018) (emphasis added). Here, because the GATHERING ORDERS infringe upon
Calvary Chapel’s free speech rights, the government “must do more than simply posit the existence
of the disease sought to be cured. It must demonstrate that the recited harms are real, not
merely conjectural.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994); see also
Edenfield v. Fane, 507 U.S. 761, 770 (1993). This is so because “[d]eference to [the government]
cannot limit judicial inquiry when First Amendment rights are at stake.” Landmark Commc’ns,
Inc. v. Maine, 435 U.S. 829, 843 (1978).

To be sure, efforts to contain the spread of a deadly disease are “compelling interests of
the highest order.” On Fire, 2020 WL 1820249, at *7. Calvary Chapel does not doubt the sincerity
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of the State’s assertion of such an interest. But where the State permits regular gatherings of more
than 10 persons for commercial, non-religious, and even so-called “non-essential” reasons, while
expressly prohibiting Calvary Chapel’s “faith-based” gatherings of like kind, the government’s
assertions of a compelling interest are substantially diminished. Put simply, the GATHERING
ORDERS “cannot be regarded as protecting an interest of the highest order . . . when [they] leave[]
appreciable damage to that supposedly vital interest unprohibited.” Republican Party of
Minn. v. White, 536 U.S. 765, 780 (2002) (emphasis added). Indeed, where the government creates
a host of exceptions, such as Governor Mills’ orders here (V. Compl. ¶¶ 27–32), the Supreme
Court has recognized that such exceptions “can raise ‘doubts about whether the government is in
fact pursuing the interest it invokes, rather than disfavoring a particular speaker.’” Williams-Yulee
v. Florida Bar, 575 U.S. 433, 448 (2015) (quoting Brown v. Entm’t Merchants Ass’n, 564 U.S.
786 (2011)). The State cannot permit broad swaths of gatherings, carrying the same (if not greater)
risk than that posed by Calvary Chapel’s church services, and still claim constitutional compliance.
“Such a prohibition does not protect an interest of the highest order.” Id.
2.
The State cannot satisfy its burden of proving narrow tailoring because
the GATHERING ORDERS are not the least restrictive means.
Calvary Chapel “must be deemed likely to prevail unless the government has shown
that [Calvary Chapel’s] proposed less restrictive alternatives are less effective than enforcing
the act.” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (emphasis added). Indeed, to prove narrow
tailoring, the State is required to demonstrate that there are no less restrictive means capable of
achieving its desired result. See, e.g., Boos v. Berry, 485 U.S. 312, 329 (1988) (when content-based
restrictions on speech are analyzed under strict scrutiny, an ordinance “is not narrowly tailored
[where] a less restrictive alternative is readily available”); Ward v. Rock Against Racism, 491 U.S.
781, 798 n.6 (1989) (noting that under “the most exacting scrutiny” applicable to content-based
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restrictions on speech, the government must employ the least restrictive alternative to pass narrow
tailoring). The State bears the burden of demonstrating narrow tailoring as a matter of law, and
that is a burden it simply cannot satisfy here. Less restrictive means are available, and that alone
condemns the State’s application of the GATHERING ORDERS to failure under strict scrutiny.
a.
The State bears the burden of demonstrating narrow tailoring
and least restrictive means.

Even on a motion for TRO or PI, the State unquestionably bears the burden of
demonstrating that the GATHERING ORDERS are narrowly tailored. As the Supreme Court has
held: “the burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). As such, the
government—not the movant—bears the burden of proof on narrow tailoring, because the
government bears that burden at trial. See Ashcroft, 542 U.S. at 665 (on preliminary injunction
motion, “the burden is on the government to prove that the proposed alternatives will not be as
effective as the challenged statute.” (emphasis added)).

The State indisputably bears the burden of proving narrow tailoring at trial. See, e.g.,
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government
restricts speech, the Government bears the burden of proving the constitutionality of its actions.”);
id. at 2540 (“To meet the requirement of narrow tailoring, the government must demonstrate
that alternative measures that burden substantially less speech would fail to achieve the
government’s interests, not simply that the chosen route is easier.” (emphasis added)). Thus, the
State also bears—and falls woefully short of meeting—the burden of proving narrow tailoring
here. See Gonzales, 546 U.S. at 429; Ashcroft, 542 U.S. at 665.
Case 1:20-cv-00156-NT Document 3 Filed 05/05/20 Page 15 of 21 PageID #: 174

b.
The State cannot demonstrate that it seriously considered less
restrictive alternatives and ruled them out for good reason.

The State flunks the narrow tailoring strict scrutiny test for a simple reason. In connection
with its narrow tailoring burden, the State must show that it “seriously undertook to address the
problem with less intrusive tools readily available to it,” meaning that it “considered different
methods that other jurisdictions have found effective.” McCullen v. Coakley, 134 S. Ct. 2518,
2539 (2014) (emphasis added). “To meet the requirement of narrow tailoring, the government must
demonstrate that alternative measures that burden substantially less speech would fail to achieve
the government’s interests, not simply that the chosen route is easier.” Id. at 2540. Thus, the State
“would have to show either that substantially less-restrictive alternatives were tried and failed,
or that the alternatives were closely examined and ruled out for good reason.” Bruni v. City of
Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016) (emphasis added).

The State utterly fails this test. The State tried nothing else. It considered nothing else but
a complete prohibition. The State jumped straight to a purported ban on “all gatherings of more
than 10 people,” and proclaimed that “faith-based” gatherings were included among the
prohibition. (V.Compl. ¶ 26, EX. B.) But the State drove a Mack Truck through its prohibition by
expansively exempting numerous businesses and non-religious entities, such as liquor, warehouse,
and supercenter stores, marijuana dispensaries, and so-called “non-essential” stores. (V.Compl.
¶¶ 27–38.) The State has not and cannot state why or how gathering with a large number of persons
at a warehouse or supercenter store (i.e., browsing, shopping, coughing, sneezing, and touching
surfaces, all while moving in the midst of crowds and masses that turn over by the hundreds
throughout a day, with distancing and hygiene practiced only “to maximum extent practicable”) is
any less “dangerous” to public health than attending a time-limited worship service, where
distancing and hygiene are strictly observed, in a space used for no more than a few hours twice
Case 1:20-cv-00156-NT Document 3 Filed 05/05/20 Page 16 of 21 PageID #: 175

per week. Yet the State exempted the non-religious gatherings and prohibited Calvary Chapel’s
church services. Quite simply, the State imposed a draconian religious gathering prohibition “not
reasonably restricted to the evil with which it is said to deal.” Butler v. Michigan, 352 U.S. 380,
383 (1957). The State tried nothing else, and for that reason alone fails narrow tailoring.
c.
The numerous other COVID-19 orders specifically exempting
religious gatherings or treating them equally to non-religious
gatherings demonstrates less restrictive alternatives exist.
Even if the State could substantiate compelling interests for the GATHERING ORDERS’
discriminatory treatment of religious gatherings, which it cannot, the State could not meet its
burden of showing that the GATHERING ORDERS are narrowly tailored. “It is not enough to
show that the Government’s ends are compelling; the means must be carefully tailored to achieve
those ends.” Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989). There must be a ‘fit
between the . . . ends and the means chosen to accomplish those ends.’” Sorrell v. IMS Health,
Inc., 564 U.S. 552, 572 (2011).

The Supreme Court has clearly established that “[t]he government may not regulate [‘a
mode of speech’] based on hostility—or favoritism—towards the underlying message expressed.”
R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (internal quotation marks omitted). The
GATHERING ORDERS impose discriminatory treatment on “faith-based” gatherings that are not
applied to similar or larger non-religious gatherings. “The existence of adequate content-neutral
alternatives thus undercut significantly any defense of such a statute, casting considerable doubt
on the government's protestations that the asserted justification is in fact an accurate description
of the purpose and effect of the law.” Id. at 395 (internal quotation marks and citation omitted)).

As shown in the Verified Complaint, the State has ignored numerous other, less restrictive
means of achieving its purported interest. One option tried successfully in other jurisdictions is to
exempt religious gatherings from gathering prohibitions altogether. The States of Arizona, Florida,
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Indiana, Ohio, and Texas have declared religious gatherings essential activities which may
continue, instead of declaring such constitutionally protected activities “non-essential” with a
stroke of a pen. (V.Compl. ¶¶ 65, 66, 67, 71, 72, EXS. J, K, L, M, Q, R.) The State has refused to
consider or attempt it. Another less restrictive alternative would be to allow churches to continue
in-person services provided they agree to maintain adequate social distancing, enhanced sanitizing,
and personal hygiene practices, like those allowed at other non-religious gatherings of more than
ten individuals. Alabama, Arkansas, and Connecticut, have all permitted such an exception for
religious gatherings. (V.Compl. ¶¶ 68–70, EXS. N–P.) Calvary Chapel has demonstrated it already
engages in the recommended social distancing, enhanced sanitizing, and personal hygiene
practices recognized by the State as sufficient for non-religious gatherings (V.Compl. ¶¶ 55-56.)
Nothing justifies depriving Calvary Chapel of the benefits afforded to non-religious gatherings.

Indeed, as the court in On Fire already exquisitely stated, the State is unlikely to be able to
demonstrate that it deployed the least restrictive means because the GATHERING ORDERS
are “underinclusive” and “overbroad.” They’re underinclusive because they
don’t prohibit a host of equally dangerous (or equally harmless) activities that the
State has permitted . . . . Those . . . activities include driving through a liquor store’s
pick-up window, parking in a liquor store’s parking lot, or walking into a liquor
store where other customers are shopping. . . But if beer is “essential,” so is
[church].
2020 WL 1820249, at *7 (emphasis added) (footnote omitted). Further, as First Baptist held,
“where comparable secular gatherings are subjected to much less restrictive conditions” than “the
broad prohibition against in-person religious services,” the government is not likely to meet its
burden that it deployed the least restrictive means. 2020 WL 1910021, at *8.
Put simply, the State’s failure to try other available alternatives that have worked and are
working in other jurisdictions demonstrates that it cannot satisfy its burden to demonstrate that its
actions are narrowly tailored. It thus fails strict scrutiny, and the TRO and PI are warranted.
Case 1:20-cv-00156-NT Document 3 Filed 05/05/20 Page 18 of 21 PageID #: 177

II.
CALVARY CHAPEL IS SUFFERING AND WILL CONTINUE TO SUFFER
IRREPARABLE INJURY ABSENT A TRO AND PRELIMINARY INJUNCTION.

Governments are not empowered to create “First Amendment Free Zones” within their
borders, like the State has done here. See, e.g., Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482
U.S. 569, 574 (1987) (striking local government’s attempt to prohibit protected expression within
a ”First Amendment Free Zone.”); United States v. Stevens, 559 U.S. 460, 470 (2010) (government
in not empowered to create First Amendment free zones with respect to certain categories of
speech). Saying that Calvary Chapel may avoid irreparable injury by simply “watching church
services online” or doing “drive-through” or “drive-in” services while foregoing established
constitutional rights is simply insufficient under the First Amendment. Indeed, “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). See also 11A Charles Alan Wright, Arthur R.
Miller, & Mary Kay Kane, Federal Practice & Procedure §2948.1 (2d ed. 1995) (“When an
alleged constitutional right is involved, most courts hold that no further showing of irreparable
injury is necessary.” (emphasis added)). Where, as here, Calvary Chapel has made a sufficient
showing of likely success on the merits, “irreparable injury is presumed.” Sindicato
Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 11 (1st Cir. 2012). Thus, demonstrating
irreparable injury “is not difficult. Protecting religious freedom was a vital part of our nation’s
founding, and it remains crucial today.” On Fire, 2020 WL 1820249, at *9 (emphasis added).
III.
THE REMAINING FACTORS FAVOR A TPO AND PRELIMINARY
INJUNCTION.

An injunction in this matter will protect the very rights the Supreme Court has
characterized as “lying at the foundation of a free government of free men.” Schneider v. New
Jersey, 308 U.S. 147, 151 (1939). The granting of a TRO and PI enjoining enforcement of the
Case 1:20-cv-00156-NT Document 3 Filed 05/05/20 Page 19 of 21 PageID #: 178

GATHERING ORDERS on Calvary Chapel’s worship services will impose no harm on the State.
Indeed, the State “is in no way harmed by the issuance of an injunction that prevents the state from
enforcing unconstitutional restrictions.” Legend Night Club v. Miller, 637 F.3 291, 302–03 (4th
Cir. 2011). But for Calvary Chapel, as noted above, even minimal infringements upon First
Amendment values constitutes irreparable injury sufficient to justify injunctive relief. Id. As such,
there is no comparison between the irreparable loss of First Amendment freedoms suffered by
Calvary Chapel absent a TRO and the non-existent interest the State has in enforcing
unconstitutional GATHERING ORDERS. Absent a TRO, Calvary Chapel and its members “face
an impossible choice: skip [church] service[s] in violation of their sincere religious beliefs, or risk
arrest, mandatory quarantine, or some other enforcement action for practicing those sincere
religious beliefs.” On Fire, 2020 WL 1820249, at *9. The balance favors injunctive relief.
Finally, “[i]njunctions protecting First Amendment freedoms are always in the public
interest.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012) (emphasis added). This
protection is ipso facto in the interest of the general public because “First Amendment rights are
not private rights [but] rights of the general public [for] the benefits of all of us.” Machesky v.
Bizzell, 414 F.2d 283, 288–90 (5th Cir. 1969) (citing Time, Inc. v. Hill, 385 U.S. 374 (1967)).
There is no “evidence that churches are less essential than every other business that is currently
allowed to be open,” On Fire, 2020 WL 1820249, at *9, and “the public has a profound interest
in men and women of faith worshipping together [in church] in a manner consistent with
their conscience.” Id. (emphasis added).
CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully request that the Court issue the TRO
and PI as set forth in the Prayer for Relief in Plaintiffs’ Verified Complaint (V.Compl. at 45–49.)

Case 1:20-cv-00156-NT Document 3 Filed 05/05/20 Page 20 of 21 PageID #: 179

Respectfully submitted,
/s/ Charles W. Hodson

/s/ Daniel J. Schmid

Charles W. Hodson, II

Mathew D. Staver*
Charles W. Hodson, II Law Office
Horatio G. Mihet*
P.O. Box 1006

Roger K. Gannam*
Phone: (207) 945-3355

Daniel J. Schmid*
Facsimile: (207) 945-5104

LIBERTY COUNSEL

Email: cwh@hodsonlaw.com
P.O. Box 540774

Orlando, FL 32854
Phone: (407) 875-1776

Facsimile: (407) 875-0770

Email: court@lc.org

hmihet@lc.org

rgannam@lc.org

dschmid@lc.org

*Pro hac vice applications pending

Attorneys for Calvary Chapel of Bangor

Case 1:20-cv-00156-NT Document 3 Filed 05/05/20 Page 21 of 21 PageID #: 180

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Motion for Temporary Restraining Order and Preliminary Injunction — Calvary Chapel v. Mills (D. Me.)

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