MARK ANTHONY SPELL; LIFE TABERNACLE CHURCH, Plaintiffs - Appellees v. JOHN BEL EDWARDS, in his individual capacity and his official capacity as Governor of the State of Louisiana; ROGER CORCORAN, in his individual capacity and official capacity as Chief of Police of Central City, Louisiana; SID GAUTREAUX, individually and in his official capacity as Sheriff of East Baton Rouge Parish, Louisiana, Defendants - Appellants
No. 20-30358
United States Court of Appeals, Fifth Circuit
June 18, 2020
CORRECTED June 25, 2020
Before SMITH, COSTA, and HO, Circuit Judges.
GREGG COSTA, Circuit Judge:
COVID-19 has brought another appeal to our court. A Louisiana church and its pastor ask us enjoin stay-at-home orders restricting in-person church services to ten congregants. But there is nothing for us to enjoin. The challenged orders expired more than a month ago. That means this appeal and the related request for an injunction under
A.
In less than six months, COVID-19 has killed more than 115,000 Americans.1 Parts of Louisiana were early hotspots for the virus.
On March 11, just two days after the first confirmed case in the Pelican State, Governor John Bel Edwards declared the COVID-19 pandemic a public health emergency. La. Exec. Dep‘t, Proclamation No. 25 JBE 2020, § 1.2 Less than two weeks later, the Governor issued a proclamation closing certain businesses and ordering “individuals within the state . . . to stay home unless performing an essential activity.” La. Exec. Dep‘t, Proclamation No. 33 JBE 2020, § 3.3 The order also “postponed or cancelled” “gatherings of 10 people or more.” Id. § 2. Although some businesses were exempt from that restriction, churches and other religious meeting places were not. Id.
The Governor extended the stay-at-home order on April 2 because “the COVID-19 outbreak in Louisiana ha[d] expanded significantly.” La. Exec. Dep‘t, Proclamation No. 41 JBE 2020.4 He extended the order again on April 30. La. Exec. Dep‘t, Proclamation No. 52 JBE 2020.5 The second extension was set to last from May 1 to May 15. Id. § 15.
The day before the second extension was set to expire, the Governor announced that Louisiana would follow the Trump Administration‘s three-
B.
Pastor Mark Anthony Spell leads Life Tabernacle Church in Baton Rouge. The church has over 2,000 members. They “sincerely believe that the Bible commands them to hold . . . services in person.”
When the Governor‘s first stay-at-home order went into effect, Life Tabernacle remained open. Pastor Spell was subsequently arrested for defying the оrder. And because he repeatedly held in-person services, police issued him six misdemeanor summons. Pastor Spell was also arrested for an alleged assault and, as a condition of bond, placed on house arrest. Nevertheless, he continued to preach to his congregation. On May 7, he and Tabernacle Life Church filed this lawsuit.
Attacking the stay-at-home orders’ ten-person gathering limit, the plaintiffs asserted several federal and state constitutional claims. They asked for permanent injunctive relief and damages, but first sought a preliminary injunction to stop enforcement of the orders.
Working diligently to resolve the motion, the district court heard argument and issued an order denying the requested relief on May 15. Spell v. Edwards, -- F. Supp. 3d --, 2020 WL 2509078 (M.D. La. 2020). The cоurt denied the motion on the merits, but it also noted the possibility of mootness given that the challenged orders were set to expire that day. Id. at *5–6.
The plaintiffs did not immediately appeal the denial of injunctive relief. Instead, two weeks after the court‘s ruling, they filed an amended complaint acknowledging that the Governor had lifted the ten-person gathering restriction. Nоt until three weeks after the district court‘s order did the plaintiffs notice this appeal. They also asked us to grant an injunction pending appeal.
II.
This recap of the case‘s history shows why the current appeal—challenging only the denial of the motion for a preliminary injunction—is moot. Mootness is one of the doctrines that ensures federal courts are only deciding live cases or controversies. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). A matter is moot “when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int‘l Union, Local 1000, 567 U.S. 298, 307 (2012) (quotations omitted).
It makes sense, then, that a case challenging a statute, executive order, or local ordinance usually becomes moot if the challenged law has expired or been repealed. See, e.g., Veasey v. Abbott, 888 F.3d 792, 799 (5th Cir. 2018) (“Ordinarily, a[n] [action] challenging a statute would become moot by the legislature‘s enactment of a superseding law.“). Once the law is off the books, there is nothing injuring the plaintiff and, consequently, nothing for the court to do. See N.Y. State Rifle & Pistol Ass‘n, Inc. v. City of New York, 140 S. Ct. 1525, 1526 (2020) (holding that a claim for injunctive relief against a law was moot when the lаw was amended to give “the precise relief that [the plaintiffs]
That said, “a defendant cannot automatically moot a case simply by ending its [allegedly] unlawful conduct once sued.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013); see also Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 284–86 (5th Cir. 2012) (concluding that a city‘s repeal of an ordinance the night before oral argument did not moot the plaintiff‘s challenges to the ordinance). If that is all it took to moot a case, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Nike, 568 U.S. at 91. To show that such a change of heаrt is not mere litigation posturing, a defendant asserting mootness must demonstrate “that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Freedom From Religion Found. v. Abbott, 955 F.3d 417, 425 (5th Cir. 2020); see also Yarls v. Bunton, 905 F.3d 905, 910 (5th Cir. 2018) (“Essentially, the goal is to [decide] whether the defendant‘s actions are ‘litigation posturing’ or whether the controversy is actually extinguished.“).
But a statute that expires by its own terms doеs not implicate those concerns. Why? Because its lapse was predetermined and thus not a response to litigation. So unlike a postsuit repeal that might not moot a case, a law‘s automatic expiration does. Trump v. Hawaii, 138 S. Ct. 377, 377 (2017) (dismissing as moot a challenge to an executive order‘s provisions that had “expired by [their] own terms“); see also Burke v. Barnes, 479 U.S. 361, 363–64 (1987) (holding “that any issues concerning whether [a bill] became a law were mooted when [it] expired by its own terms“).
Plaintiffs contend that another way around mootness—the “capable of repetition, yet evading review” exception—keeps this appeal alive. This exception overcomes the general rule against deciding stale claims only if: (1) “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” and (2) “there [is] a reasonable expectation that the [plaintiffs] [will] be subject to the same action again.” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (instructing that this “exception applies only in exсeptional situations” (quotation omitted)). The plaintiffs must prove these requirements. Libertarian Party v. Dardenne, 595 F.3d 215, 217 (5th Cir. 2010). Even if the first requirement (duration) is satisfied for the stay-at-home orders, the plaintiffs fail to establish that the Governor might reimpose another gathering restriction on places of worship. The trend in Louisiana has been to reopen the state, not to close it down. To be sure, no one knows what the future of COVID-19 holds. But it is speculative, at best, that the Governor might reimpose the ten-person restriction or a similar one. Lopez v. City of Houston, 617 F.3d 336, 340 (5th Cir. 2010) (requiring more than “merely a theoretical possibility” that the allegedly wrongful conduct would reoccur (quotation omitted)); see also Cameron, 2020 WL 2573463, at *2 (concluding that the exception did not apply to a mooted claim challenging expired COVID-19 restrictions in part because “it seem[ed] unlikely that [they] w[ould] be reissued“).
* * *
Because this appeal is moot, the plaintiffs’ motion for an injunction is DENIED. For the same reasons, the appeal is DISMISSED. And because the appeal became moot befоre appellate review, the district court‘s order denying preliminary relief is VACATED. Spell, 2020 WL 2509078. The plaintiff‘s claim for damages remains in the district court.
I agree that this appeal is moot due to recent changes to the Governor‘s order, and that the case will now return to the district court. I write separately to note how other recent events may affect this case going forward.
* * *
At the outset of the pandemic, public officials declared that the only way to prevent the spread of the virus was for everyone to stay home and away from each other. They ordered citizens to cease all public activities to the maximum possible extent—even the right to assemble to worship or to protest.
But circumstances hаve changed. In recent weeks, officials have not only tolerated protests—they have encouraged them as necessary and important expressions of outrage over abuses of government power.
For people of faith demoralized by coercive shutdown policies, that raises a question: If officials are now exempting protesters, how can they justify continuing to restrict worshippers? The answer is that they can‘t. Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are “open” and which remain “closed.”
I.
Officials may take appropriate emergency public health measures to combat a pandemic. Sеe Jacobson v. Massachusetts, 197 U.S. 11, 30–31 (1905). See also Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944). But “[n]othing in Jacobson supports the view that an emergency displaces normal constitutional standards.” S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 942 (9th Cir. 2020) (Collins, J., dissenting) (emphasis omitted).1
The Governor invokes Employment Division v. Smith, 494 U.S. 872 (1990). But Smith upheld a “neutral law of general applicability” against challenge under the Free Exercise Clause. Id. at 879 (quotations omitted). Smith does not cover laws that grant exemptions to some, while denying them to people of faith. “Religious liberty deserves better than that—even under Smith.” Horvath v. City of Leander, 946 F.3d 787, 795 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting in part).2
Instead, laws that burden religion while exempting the non-religious must pass strict scrutiny. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). The burden on religion “must be justified by a compelling governmental interest,” and the law “must be narrowly tailored to advance that interest.” Id. at 531–32. That is a heavy lift: Such laws “will survive strict scrutiny only in rare cases.” Id. at 546.
I do not expect this to be one of those “rare cases.” Id. Pastor Mark Anthony Spell and his parishioners seek to worship as their faith directs. They cannot do so, however, due to a series of orders by Governor John Bel Edwards that forbid citizens from assembling in public—including inside churches.
The Governor no doubt issued those orders out of sincere public health concerns. To survive First Amendment scrutiny, however, those concerns must
It is common knowledge, and easily proved, that protestors do not comply with social distancing requirements.3 But instead of enforcing the Governor‘s orders, officials are encouraging the protests—out of an admirable, if belated, respect for First Amendment rights. The Governor himsеlf commended citizens for “appropriately expressing their concerns and exercising their First Amendment Rights.”4 And he predicted that “we will continue to see peaceful, nonviolent demonstrations and protests where people properly exercise their First Amendment rights.”5
If protests are exempt from social distancing requirements, then worship must be toо. As the United States recently observed, “California‘s political leaders have expressed support for such peaceful protests and, from all appearances, have not required them to adhere to the now operative 100-person limit. . . . [I]t could raise First Amendment concerns if California were to hold other protests . . . to a different standard.” Brief for the United States as Amicus Curiae at 24, Givens v. Newsom, No. 20-15949 (9th Cir. June 10, 2020). The same principle should apply to people of faith. See, e.g., Lukumi, 508 U.S. at 537 (“[Where] individualized exemptions from a general requirement are available, the government may not refuse to extend that
II.
The Governor may respond that his order forbids only indoor worship but still allows people of faith to worship outdoors. But whether health experts would endorse that dichotomy—and whether the First Amendment permits it—is far from obvious.6
Underinclusive rules fail strict scrutiny just as overinclusive ones do. A “law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damаge to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (cleaned up). To survive strict scrutiny, then, the Governor must show that a rule restricting indoor worship, while exempting outdoor worship, is narrowly tailored to further a compelling interest.
That may not be easy. Plaintiffs can presumably find health experts who say outdoor protests present serious health concerns.7 They might alsо find health experts who support and encourage the protests, not because they pose no health risk, but because their social value outweighs any risk.8
Such support for the protests reflects a commendable commitment to equality. But public officials cannot devalue people of faith while elevating certain protestors. That wоuld offend the First Amendment—not to mention the principle of equality for which the protests stand.
None of this is to say that Pastor Spell and his parishioners should ignore the advice of health experts. But the same is true for the protestors. No doubt many other Louisianans would have protested too, but for the advice of health experts. The point here is that state and lоcal officials gave them the choice. Those officials took no action when protestors chose to ignore health experts and violate social distancing rules. And that forbearance has consequences.
The First Amendment does not allow our leaders to decide which rights to honor and which to ignore. In law, as in life, what‘s good for the goоse is good for the gander. In these troubled times, nothing should unify the American people more than the principle that freedom for me, but not for thee, has no place under our Constitution.
I concur in the dismissal of this appeal as moot, but in anticipation that a future appeal may turn out very differently.