Court Opinions: 10th Circuit Court of Appeals Opinion from Jan. 24

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Denver Bible Church, et al. v. Becerra, et al.

In this appeal from the denial of a preliminary injunction, the Denver Bible Church, Community Baptist Church and Joey Rhoads, Community Baptist’s pastor, challenged the validity of various restrictions that Colorado imposed to combat the spread of COVID-19, as well as the federal government’s award of COVID-19 relief funds to Colorado. According to the churches, Colorado’s restrictions violate their First Amendment right to the free exercise of religion and federal aid violates federal statutes that prohibit religious discrimination.

The churches filed this action in August 2020. On the state side, they sued the governor of Colorado, the Colorado Department of Public Health and Environment and the executive director of CDPHE. The churches asserted a variety of claims against the state, arguing that the Colorado Disaster Emergency Act is facially unconstitutional under the First Amendment’s free-exercise clause; the executive and public-health orders, as applied, violate their First Amendment free-exercise right; the executive and public-health orders are unconstitutionally vague; the governor’s declaration of an emergency violated the CDEA; the executive orders violate the Colorado constitution and exceed the scope of the governor’s authority under the CDEA; and the public-health orders violate their due-process rights and Colorado’s administrative procedure act.

On the federal side, the churches sued the Department of Health and Human Services, the Department of Homeland Security and the Department of the Treasury, as well as the heads of those federal agencies.

The churches contended the federal agencies violated the Religious Freedom Restoration Act with respect to unspecified federal funding provided to Colorado under the Robert T. Stafford Disaster Relief and Emergency Assistance Act and the Coronavirus Aid, Relief, and Economic Security Act. The churches also argued that the federal agencies violated the Stafford Act’s prohibition against religious discrimination.

Overall, the churches sought to enjoin the state from enforcing its executive and public health orders, require the state to terminate such orders and prohibit the federal agencies from “approving or providing any future assistance to” Colorado. They filed a motion for a preliminary injunction. The district court granted the churches’ motion “in relatively narrow part,” concluding that they were entitled to a preliminary injunction on their claim that the “numerical occupancy limitations for worship services” and “the requirement that congregants wear face masks at all times during worship services” violated their First Amendment right to the free exercise of religion

But as relevant to this appeal, the district court denied the remainder of the churches’ preliminary injunction motion, concluding the churches failed to make the required strong showing of a substantial likelihood of success on the merits. The district court determined that both the facial challenge to the CDEA and the as-applied challenge to the social-distancing requirement in the executive and public health orders were unlikely to succeed because the statute and the social distancing requirement were neutral and generally applicable and therefore likely constitutional. 

Next, the district court discerned no likely due-process violation in the CDPHE’s decision to issue public health orders without providing notice and a hearing, reasoning that such process is not typically required either for generally applicable rules that affect the public at large or for rules issued in emergency situations. The district court also concluded the churches’ state law claims were likely barred by the 11th Amendment, which makes states immune from suits brought by citizens in federal court. As for the claims against the federal agencies, the district court determined that the churches likely lacked constitutional standing to bring such claims. The court denied a preliminary injunction on most of the claims. The churches then filed this appeal and unsuccessfully sought an injunction pending appeal from the district court, this court and the U.S. Supreme Court.

But Colorado has dramatically amended and loosened its COVID-19 restrictions since this case was filed. Colorado no longer imposes any COVID-19 restrictions on the churches, and all but one of the plaintiffs’ claims against Colorado are now moot. The 10th Circuit Court of Appeals noted in its opinion that neither the voluntary-cessation nor the capable-of-repetition-yet-evading-review exceptions to mootness apply here because Colorado has established that it is not reasonably likely to reinstate the challenged restrictions against the churches.

The remaining claim brought against Colorado is that the state’s emergency disaster statute is facially unconstitutional. The 10th Circuit Court of Appeals concluded the district court didn’t abuse its discretion in denying a preliminary injunction on this claim, which is unlikely to succeed because the statute is neutral and generally applicable.

As for the churches’ claims arising from federal COVID-19 aid, the 10th Circuit likewise determined the district court didn’t abuse its discretion in denying the churches a preliminary injunction enjoining such aid. The 10th Circuit noted in its opinion that the churches’ claims on this front are unlikely to succeed because the churches — who fail to meet their burden of showing that their injuries are either traceable to such federal aid or redressable by an injunction enjoining such aid — lack standing to bring them. 

The 10th Circuit dismissed in part and affirmed in part.

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