Movie Theaters Say New Jersey's Religious Bias is Unconstitutional

AMC -Theater Closed signs are posted in front - March 17, 2020- Getty-H 2020
FREDERIC J. BROWN/AFP via Getty Images

George Orwell once imagined a totalitarian society controlled by pigs who would proclaim, "All animals are equal, but some animals are more equal than others." On Friday, in the midst of international pandemic that has forced the closures of many businesses with some then being allowed to reopen, the movie theater industry trotted out this quote from Orwell's Animal Farm to shame the great state of New Jersey.

Just about a month ago, the National Association of Theatre Owners sued New Jersey Governor Philip Murphy for allegedly violating their First Amendment rights.  AMC, Cinemark, Regal, and other exhibition giants couldn't believe that after presenting a plan for safely reopening the movie houses, New Jersey's health department refused to budge. Unfortunately, for everyone dying (or willing to die) to see Christopher Nolan's Tenet, the plaintiffs were unsuccessful in obtaining a court ordered movie theater re-opening. A federal judge rejected a motion for a temporary restraining order by noting that movie theaters could have filed a legal action sooner and that it was noteworthy that other states were again forcing closures due to rising COVID-19 cases.

The judge set up more briefing, and after NATO lodged its opening brief in support of a preliminary injunction, that's when New Jersey's pigs made an argument on page 37 of a 45-page opposition brief that has movie theaters leaning in and screaming discrimination.

The issue pertains to how New Jersey has allowed churches to open again.

"Even if this Court disagrees with the State’s well-supported determination that houses of worship and movie theatres are dissimilarly situated, it still cannot grant Plaintiffs the relief that they seek for another reason: the State is allowed to accord greater protection to religious activity," wrote New Jersey's attorney general.

Say what?

The movie industry now sees an opening from this Blue State arguing that it's allowed to put religion up on a pedestal over secular speech.

"To be clear: Plaintiffs never disputed that a State has authority to impose emergency public health measures (which is why Plaintiffs never considered filing suit when the initial, neutral business closure orders were issued in March)," states NATO's latest brief. "And Plaintiffs are not claiming that they should be treated more favorably than other indoor gatherings that the State has allowed to open. But the very cases on which Defendants rely most make it abundantly clear that Defendants’ emergency powers must be exercised in a constitutional manner. Equal protection under the law and the right to free speech do not vanish during a public health emergency. Now that Defendants have deemed it safe for similarly-situated gathering places to reopen with appropriate health safeguards in place, equal protection dictates that they must allow Plaintiffs to reopen under the same conditions. This case is not about special treatment, this case is about equal treatment."

New Jersey's proposition that it is allowed to accord greater protection to religious activity comes from a 15-year-old Supreme Court opinion, Cutter v. Wilkinson, holding that a law requiring religious accommodations in prison hadn't violated the Establishment Clause of the First Amendment. There, justices were fine with the notion that Ohio was providing inmates with chaplains “but not with publicists or political consultants,” potentially secular equivalents.

Reading the movie industry's arguments as well as Cutter, New Jersey's top lawyers wrote, "Plaintiffs’ claim that movies and worship cannot be distinguished runs afoul of that same rule; it follows logically from their position that inmates must be provided time to watch movies as a group if any other inmates are permitted to engage in communal prayer. Simply put, as a matter of black-letter First Amendment law, the State does not have to allow a couple a night out to watch Tenet simply because it is also protecting their right to freely worship."

NATO asserts that New Jersey is misinterpreting the situation because their claims don't go to any violation of the Establishment Clause, but rather to how New Jersey is violating Equal Protection. In other words, New Jersey is allegedly violating the U.S. Constitution by discriminating against secular speech. That wasn't at issue in Cutter. "New Jersey’s movie theatres are not prisons and Governor Murphy is not their warden," continues NATO's brief. "Cutter has no application here."

The movie theaters also defend the premise of their argument. That being that movie theaters belong in the same breath as churches. The plaintiffs say that in both venues, large numbers of people are congregating for a prolonged period of time.

New Jersey has told the judge that movie theaters are "especially risky vectors for spread of COVID-19" because patrons are strangers to one another, because of the heavy use of air conditioning, and because there's no way that theaters can enforce the use of masks when the lights go down. "Those risks are further magnified when movie theatres offer concessions, which Plaintiffs plan to do, which require the movie theatres’ patrons to remove masks for extended periods of time while eating and drinking," adds New Jersey's papers.

The theatrical plaintiffs say the government is ignoring the details of their plan — like the use of special air filtration units calibrated to maximize replacement of indoor air with fresh air — while also not sufficiently explaining what measures churches are being required to take

Amping up the comparisons, the theaters say, if anything, it's churches as the more risky vectors of COVID-19 spread. State the theaters, "Unlike attendees at places of worship, movie theatre guests generally do not engage in conversation with those outside their immediate group, hold or shake hands, hug, sing, provide verbal responses, engage in responsive readings, sit, stand and kneel frequently, share prayer books, or engage in other forms of contact common in places of worship. There are no hands-on healing ceremonies. Speaking and singing is not allowed in movie theatres."