Attorneys from the Thomas More Society filed a motion for leave to file a third amended complaint in a federal religious liberty lawsuit against New Jersey Governor Philip Murphy. Given the decline of COVID deaths and hospitalizations to near zero in the state, Reverend Kevin Robinson, a Catholic parish priest, and Rabbi Yisrael Knopfler, leader of an Orthodox Jewish synagogue, have expanded their claims for relief against Murphy and his administration on account of indoor “gathering” restrictions that interfere with worship.

Robinson and Knopfler are asking the United States District Court for the District of New Jersey to prevent Murphy and other state officials from enforcing executive orders that bar their respective houses of worship from holding indoor religious worship at more than 25% of capacity, leaving them with only miniscule congregations.

Thomas More Society Special Counsel Christopher Ferrara explained the crux of the lawsuit: “Governor Murphy, embarrassed by his own participation in massive George Floyd demonstrations, has issued an executive order eliminating numerical limits on outdoor ‘gatherings’ for political or religious purposes. The determination of what is allowed for an outdoor ‘gathering’ now hinges solely upon the purpose of the ‘gathering.’ Is it a religious service? Is it a political protest? Is it a concert? The answer to that question determines what you can and cannot do, according to Governor Murphy’s Executive Orders,” stated Ferrara.

Ferrara said: “That is blatant, content-based discrimination – a clear violation of the rights to freedom of speech and assembly under the First Amendment.”

As for indoor “gatherings,” Ferrara noted that “If you want to hold worship inside a church or synagogue, Governor Murphy has limited your numbers to no more than 25% of room capacity or 100 persons, whichever is smaller. But if you want to assemble for worship outdoors, which is not where church or synagogue worship belongs, you have no limit and you don’t have to social distance. Yet, you cannot hold a graduation ceremony or a festival outdoors if there are more than 500 people in attendance because that is not a religious or political gathering.”

“This whole scheme is preposterous,” said Ferrara. “America has never seen anything like it. Murphy is making up rules as he goes along. Meanwhile, almost no one in New Jersey is dying on account of the virus.”

The amended complaint details how New Jersey’s “reopening” plan further undermines the neutrality and general applicability of the gathering-size limits on religious services. Activities that are currently exempt from numerical limits include childcare centers, youth summer camps, casinos, and non-contact indoor sports – all of which may operate without the same degree of restriction as is currently placed on religious services. This is despite the scientific fact that all of these activities, including religious worship, carry a similar level of risk for spreading COVID-19.

Ferrara cites United States Supreme Court Chief Justice John Robert’s recent acknowledgement that activities that are comparable to church services include large gatherings, where people are in close proximity to each other, for extended periods of time (South Bay United Pentecostal Church v. Newsom, May 2020).

“The purpose of a gathering is not an appropriate determiner of risk, but rather whether there are many people in close proximity for extended periods of time, which is the case with numerous activities involving large crowds that Murphy allows, while he clamps down on comparatively tiny religious congregations,” Ferrara emphasized.

Ferrara also noted that the United States Court of Appeals for the Seventh Circuit admitted that factories, warehouses, and homeless shelters, all of which have remained nearly fully operational under New Jersey’s COVID-19 executive orders, pose “the same risk” of spreading COVID-19 as indoor church services. “These many exceptions for secular activities mandate exceptions for religious activities. Otherwise, the whole scheme lacks neutrality and general applicability and impermissibly discriminates against religion.”

The complaint also raises the violation of religious rights incurred by Murphy’s “mask mandate.”

“This is not really a mask mandate at all,” Ferrara noted, “but only a command to wear ‘face coverings,’ such as scarves and bandanas, because even Murphy knows he can hardly compel 9 million people to stock their homes with boxes of medical grade masks, which he wants reserved for medical workers anyway.”

Orthodox Jewish law expressly requires that students “look at the countenance of their teachers in order to properly learn their faith.” And Catholics “cannot receive Holy Communion and can hardly be married while wearing Murphy’s ridiculous scarves and bandanas,” said Ferrara.

“Amazingly enough—but then, who could be amazed at this governor’s random rule-making at this point?—Murphy decrees that one can remove one’s ‘face covering’ either ‘briefly’ or ‘momentarily’ for ‘religious purposes’ or ‘religious reasons.’ So, how brief is briefly, and how momentarily is momentarily? And who decides what constitutes a religious purpose or reason? Another ridiculous rule that clearly invades religious autonomy and internal church governance.”

In addition to Murphy, the complaint also names Superintendent of State Police and State Director of Emergency Management Colonel Patrick Callahan, Attorney General of the State of New Jersey Gubir Grewal, Commissioner of the New Jersey Department of Education Lamont Repollet, and New Jersey Department of Health Commissioner Judith Persichilli, each in his or her official capacity.

Read the Thomas More Society’s proposed Third Amended Verified Complaint for Civil Rights Violations, Injunctive Relief, and a Declaratory Judgement, filed with the United States District Court for the District of New Jersey – Newark Division, in Rev. Kevin Robinson and Rabbi Yisrael A. Knopfler v. Philip D. Murphy, Governor of the State of New Jersey, et. al, on July 23, 2020, here.