Litigation Challenging Mandatory Stay at Home and Other Social Distancing Measures

Table 1: Selected Cases Challenging Stay-at-Home Orders as of May 29, 2020
State & Court Case Claim Decision/ Status
CA

Federal Court

Givens v. Newsom Individuals seeking to hold political protest and rally at state capitol alleged stay-at-home order violated right to free speech, free assembly, and petition government Federal district court denied temporary restraining order because ban relates to public health, and court must defer to officials’ informed efforts to protect all citizens against deadly pandemic. Plaintiffs have appealed to the 9th Circuit Court of Appeals.
CA

Federal Court

Gish v. Newsom Individuals seeking to practice religion alleged that stay-at-home order violated right to free exercise of religion, anti-establishment of religion, free speech, free assembly, due process, and equal protection Federal district court denied temporary restraining order because stay-at-home order is neutral, serves secular purpose, and does not endorse any religion – right to practice religion freely does not include liberty to expose community to communicable disease. Plaintiffs have appealed to the 9th Circuit Court of Appeals.
CA

Federal Court

South Bay United Pentecostal Church v. Newson A church, bishop, and rabbi seeking to assemble to practice religion allege state and county stay at home orders violate rights to free speech and free exercise of religion, and the re-opening plan explicitly target religion and “faith-based” services. The 9th Circuit Court of Appeals upheld the district court’s denial of a temporary restraining order. The plaintiffs appealed to the Supreme Court, requesting an emergency stay. The Supreme Court denied the stay.
IL

Filed in State court, Governor moved to Federal court but Plaintiffs are contesting the move

Bailey v. Pritzker Republican member of the IL House of Representatives alleges the Democratic Governor has exceeded the statutory authority granted under the IL Emergency Management Agency Act. The Governor filed a motion to remove the case to federal court. The Trump Administration has filed a statement of interest in the case supporting the plaintiffs.
IL

Federal Court

Elim Romanian Pentecostal Church v. Pritzker A church and ministry allege the limits on public gathering orders violate rights to free speech, free exercise of religion, and assembly. Federal district court denied the motion to for a temporary restraining order. The 7th Circuit Court of Appeals also denied the motion for a stay. The Plaintiffs  requested an emergency stay from the Supreme Court. After the Illinois Department of Public Health issued new guidelines allowing for in-person worship service, the Supreme denied the stay.
KS

State Court

Kelly v. Legislative Coordinating Council Governor filed a lawsuit against the 7-member Legislative Coordinating Council, which had voted to revoke the Governor’s executive order limiting religious gatherings to 10 people. The Kansas Supreme Court ruled in the Governor’s favor stating that the Legislative Coordinating Council does not have the power to overrule the Governor.
KY

Federal Court

W.O. v. Beshear Individuals alleged order encouraging 14-day self-quarantine after out-of-state travel violated right to interstate travel Dismissed individual plaintiffs for lack standing to challenge order because no credible threat of prosecution.
KY

Federal Court

Roberts v. Neace Individuals alleged ban on mass gatherings violated right to free exercise of religion and mandatory 14-day self-quarantine after out-of-state travel violated fundamental liberty and due process Federal district court denied preliminary injunction on mass gathering ban as purpose is not to suppress religion, but granted preliminary injunction on mandatory self-quarantine after out-of-state travel ruling this provision is not narrowly tailored. 6th Circuit Court of Appeals granted an injunction barring enforcement of ban on plaintiffs’ religious gatherings pending appeal.
KY

Federal Court

Maryville Baptist Church, Inc. v. Beshear Church and pastor allege the ban on public gathering orders violate rights to free assembly, free speech, free exercise of religion, and the establishment clause of the First Amendment. 6th Circuit Court of Appeals issued an injunction pending appeal as it applies to the plaintiff’s drive in services. The district court then extended the injunction to apply to the plaintiff’s in person services.
MD

Federal Court

Antietam Battlefield KOA et al. v. Lawrence J. Hogan Jr.   Business owners, clergy and 3 Republican state delegates allege that the stay at home order violates free exercise of religion, freedom of assembly and speech, and the order exceeds the Governor’s statutory authority. The District Court denied the motion for a temporary restraining order.  The plaintiffs appealed to the 4th Circuit Court of Appeals.
MI

State Court

Martinko v. Whitmer Individuals alleged stay-at-home order and ban on travel to third party vacation rentals violated right to due process The Michigan Court of Claims denied preliminary injunction because measure is temporary and has real and substantial relation to public health crisis. Individual constitutional rights are subject to the interest of fellow citizens in remaining unharmed by highly communicable deadly virus. The plaintiffs have appealed to the Court of Appeals and requested the Michigan Supreme Court to grant emergency-bypass review of the case before a decision from the Court of Appeals.
MI

State Court

Michigan House of Representatives and Michigan Senate v. Whitmer The Legislature asserts the Governor’s Stay at Home Order is not authorized by state law. The Court of Claims judge denied the Legislature’s motion for declaratory judgment. The Legislature has filed an appeal with the Court of Appeals and requesting the Michigan Supreme Court to grant emergency-bypass review of the case before a decision from the Court of Appeals.
MS

Federal Court

First Pentecostal Church v. City of Holly Springs, MS Church challenged City’s stay at home order prohibiting both drive in services and in person worship services. After the City agreed that the church could conduct drive in services, the federal district court denied a motion for a temporary restraining order to allow in person worship services. The 5th Circuit Court of Appeals issued a temporary restraining order, allowing the church to conduct in person worship services, as long as it satisfies the requirement entitling similarly situated businesses and operations to open.
NM

Federal Court

Legacy Church, Inc. v. Kunkel 20,000 member megachurch alleged that ban on gatherings of more than 5 people violated right to free exercise of religion and right to assemble Federal district court denied temporary restraining order because ban is neutral, generally applicable and reasonable time/place/manner restriction.
NC

Federal Court

Berean Baptist Church v. Cooper Two churches, a religious nonprofit  consisting of a network of churches and individuals, and a pastor allege that the prohibition on more than 10 people gathering violates freedom of free exercise of religion, right to assemble, and approves only State-mandated forms of worship. District Court issued a temporary restraining order stating, “There is no pandemic exception to the Constitution of the United States or the Free Exercise of the First Amendment.” Plaintiffs voluntarily dismissed their case after the Governor issued a new executive order exempting all religious and spiritual gathering from the requirements of other gatherings.
OR

State Court

Elkhorn Baptist Church, et al v. Katherine Brown Governor of the State of Oregon  10 churches and 21 individuals allege deprivation of constitutional right to freely exercise their religion, and great economic harm and that the Governor’s executive order exceeded the duration permitted by the state law the Governor cited in her order Circuit Court issued preliminary injunction ruling that the Governor overstepped her authority. Oregon Supreme Court stayed circuit court ruling. Hearing took place May 22nd and awaiting decision from Oregon Supreme Court.
PA

State Court

Friends of Danny Devito v. Wolf Realtor, golf course owner, and state House candidate alleged that closure of physical operations of all non-life-sustaining businesses violated rights to due process, free speech, and free assembly State court upheld order as reasonably necessary to meet emergency, temporary business closure not unduly oppressive when faced with protecting life and health of all state citizens. Supreme court denied request for stay without comment.
WI

State Court

Wisc. Legislature v. Palm State legislature alleged stay-at-home order exceeded health secretary’s authority under state law Wisconsin Supreme Court overturned stay-at-home order for failure to follow emergency rule-making procedures
SOURCE: KFF analysis of court cases.
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