First Pentecostal v. City of Holly Springs

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-60399

FIRST PENTECOSTAL CHURCH OF HOLLY SPRINGS,

Plaintiff - Appellant

v.

CITY OF HOLLY SPRINGS, MISSISSIPPI,

Defendant - Appellee

Appeal from the United States District Court
for the Northern District of Mississippi

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:
Our sole appellate jurisdiction in this case rests upon denial of an
injunction implied from the choice by the district court not to rule in an
expedited fashion. After briefing, it remains plain that the court is being
requested to enjoin a shifting regulatory regime not yet settled as to its
regulation and regulatory effect, such as the apparent acceptance by the
Church of the Governor’s regulations. That settlement is best made by the
district court in the first instance. Lest we in error step upon treasured values
of religious freedom and personal liberties we stay our hand and return this
case to the district court for decision footed upon a record reflecting current
conditions.
United States Court of Appeals
Fifth Circuit
FILED
May 22, 2020

Lyle W. Cayce
Clerk

No. 20-60399
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Accordingly, we recognize that in this fast-shifting landscape of COVID-
19 regulations, temporary deferral of a decision may effectively be a permanent
denial. In the interim, pending the district court’s decision, the City is enjoined
from enforcing against the Church the Faith Based Organizations sections of
Executive Order 6 and Executive Order 7.
We do this upon the assurances by the Church that it will “satisf[y] the
requirements entitling similarly situated businesses and operations to
reopen.” In this vein, we refer the Church to the Governor’s new “Safe Worship
Guidelines for In-Person Worship Services,” which appear similarly rigorous
to the City’s requirements for reopening businesses but are tailored to church
operations. These guidelines, if implemented in the spirit of the City’s orders,
may help the Church abide by its safety pledge during this intervening period
while the district court considers the injunction request and while the City
continues the ongoing process of evaluating and revising its orders related to
COVID-19.
IT IS ORDERED that appellant’s emergency motion for injunction
pending appeal is granted as set out above. To the extent appellant seeks
further relief from this court, the motion is denied.
IT IS FURTHER ORDERED that appellant’s alternative motion to
expedite the appeal is denied as moot.
This case is remanded to the district court.

No. 20-60399
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DON R. WILLETT, Circuit Judge, concurring.
The First Pentecostal Church of Holly Springs was burned to the ground
earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet
you Stay home Now YOU HYPOKRITS.”
The City mentions the church burning in its latest brief, but in a manner
less commendable than condemnable. One might expect a city to express
sympathy or outrage (or both) when a neighborhood house of worship is set
ablaze. One would be mistaken. Rather than condemn the crime’s depravity,
the City seized advantage, insisting that the Church’s First Amendment claim
necessarily went up in smoke when the church did: “the Church was destroyed
from an arson fire . . . making the permanent injunction claim moot.”
This argument is shameful.
When the parishioners of First Pentecostal Church leave their homes on
Sundays, they are not going to church; they are the church. The church is not
the building. When the New Testament speaks of the church, it never refers to
brick-and-mortar places where people gather, but to flesh-and-blood people
who gather together.
1
Think people, not steeple.
I concur in the court’s grant of injunctive relief. Singling out houses of
worship—and only houses of worship, it seems—cannot possibly be squared
with the First Amendment. Given the Church’s pledge “to incorporate the
public health guidelines applicable to other entities,” why can its members be
trusted to adhere to social-distancing in a secular setting (a gym) but not in a
sacred one (a church)? Their sanctuary may be destroyed (for now), but when
congregants congregate this Sunday, whether indoors in another facility

1
“Ekklesia,” the Greek word for church, means the gathered ones, an assembly of the
faithful. See Ekklesia, The Oxford Dictionary of Byzantium (Alexander P. Kashdan ed., 1991)
(“personification of the church”).

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(which has been offered) or outdoors in a parking lot, they will come together
knowing that a church is not a building you go to but a family you belong to.