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Church denied injunction pending appeal of COVID-19 restrictions

Virginia Lawyers Weekly//June 25, 2020

Church denied injunction pending appeal of COVID-19 restrictions

Virginia Lawyers Weekly//June 25, 2020

A church claiming the Virginia governor’s COVID-19 restrictions violate its freedom of religion was denied an injunction pending appeal because it failed to show it was likely to prevail on the merits. And as there is a related judicial proceeding pending in state court, abstention was warranted.


On May 5, 2020, the court denied plaintiff’s emergency motion for a temporary restraining order and preliminary injunction. Plaintiff subsequently filed a notice of appeal. Plaintiff now moves for an injunction pending appeal, pursuant to Federal Rule of Civil Procedure 62(d) and Federal Rule of Appellate Procedure 8(a)(1)(C).


In deciding a motion for an injunction pending appeal under Federal Rule of Civil Procedure 62, the court must consider four factors: “(1) whether the applicant has made a strong showing that it is likely to succeed on the merits [of the appeal]; (2) whether the applicant will be irreparably injured absent [an injunction pending appeal]; (3) whether issuance of [an injunction pending appeal] will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

Defendant—the Governor of Virginia—is immune from the claims asserted in this motion and in plaintiff’s previous motion for a TRO and preliminary injunction. Accordingly, plaintiff is unlikely to succeed on its claims against defendant.

Suits against state officers for violations of state laws are absolutely barred by 11th Amendment immunity. Nevertheless, a state “may waive its 11th Amendment immunity by consenting to be sued in federal court.” Here, plaintiff has failed to present any other state statute, constitutional provision or Virginia Supreme Court case establishing that the commonwealth waives immunity from suit in federal court for alleged violations of the Virginia Religious Freedom Act.


Although the court denied plaintiff’s motion for a TRO and preliminary injunction on the grounds that plaintiff had failed to show likelihood of success on the merits and because the public interest and balance of the equities disfavor a preliminary injunction, the court now includes additional reasoning recognizing the impropriety of this court ordering preliminary injunctive relief, injunctive relief pending appeal and ultimately declaratory and permanent injunctive relief after considering the doctrine of derivative abstention.

Here, a state judicial proceeding involving Kevin Wilson, the pastor of Lighthouse Fellowship Church, was instituted before plaintiff filed this federal lawsuit. The criminal summons was issued to Pastor Wilson after he held a service at Lighthouse Fellowship Church. There an intertwining of the interests of a church and its pastor regarding restrictions on a church’s ability to host large religious worship services and the criminal prosecution of the church’s pastor for holding a large religious worship service.

The relief sought by plaintiff “works the sort of practical interference with an ongoing state criminal proceeding that Younger counsels against.” Were this court to rule in plaintiff’s favor on the merits, “its practical effect [would be] to raise the specter of a federal pre-judgment” that the prosecution of Pastor Wilson is unconstitutional, which then “must be taken into account” by the state court presiding over Pastor Wilson’s case. Plaintiff appears to have been motivated to file this federal lawsuit because its pastor was issued a criminal summons. This is “the kind of interference that Younger v. Harris . . . and related cases sought to prevent.”

Plaintiff’s emergency motion for injunction pending appeal denied.

Lighthouse Fellowship Church v. Northam, Case No. 19-cv-00204, May 21, 2020. EDVA at Norfolk (Allen). VLW 020-3-290. 20 pp.

VLW 020-3-290

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