If Churches Can Open, Why Can't The Movies, Biz Group Asks

By Jeannie O'Sullivan
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Law360 (August 5, 2020, 10:06 PM EDT) -- Cinema owners and related trade groups blasted New Jersey Gov. Phil Murphy's COVID-19 shutdown mandate in federal court Wednesday, arguing it unfairly harms movie theaters while giving preferential treatment to religious worship that poses just as much risk to spread the virus.

During an oral argument via Zoom, the National Association of Theatre Owners urged the New Jersey federal court to lift the state-mandated shutdown of movie houses, one of the nonessential business sectors that has yet to be included in the Garden State's phased reopening plan.

Their attorney, Robert Corn-Revere of Davis Wright Tremaine LLP, told U.S. District Judge Brian R. Martinotti that state health officials haven't provided any information about how gatherings at movie theaters pose a higher risk of coronavirus spread than gatherings at masses, weddings or funerals. Those are allowed to go on, subject to crowd and capacity limits, but operations at theaters and other indoor performance venues are completely halted.

"It seems that the exceptions in New Jersey are being made for what Gov. Murphy thinks are more acceptable and congenial," Corn-Revere said, adding that theaters are seeking equal, not preferential, treatment and are willing to comply with safety precautions such as crowd restrictions.

Assistant New Jersey Attorney General Jeremy Feigenbaum countered that the mandate amounts not to suppression of free speech but rather a normal response to an unprecedented situation. Further, the government has a long-standing interest in accommodating religious freedom while preserving public safety, he argued.

"That's the balance we try to walk," Feigenbaum told the court.

Making a case for the historic protection of religion, Feigenbaum offered the examples of military personnel allowed a daily hour of prayer, tax exemptions and special zoning laws for churches, and the religion provision in the state's Law Against Discrimination.

Judge Martinotti questioned how the law would be applied if mass were to be celebrated in a movie theater, given that Cinemark has a program offering space to churches with no place to worship. Corn-Revere added that the program raised an "interesting question."

Feigenbaum replied, "The state is not required to say that every single use of a church is distinguishable from every single use of a movie theater."

In addition to the religious freedom argument, the state pointed out that alternatives exist to in-person theaters, such as movie streaming, and said it is concerned that people will take off their masks at movie theaters to enjoy concession stand fare.

When Judge Martinotti noted that churchgoers might also take off their masks, Feigenbaum replied that individuals "are more likely to listen to their faith leaders than a movie usher."

The cinema owners sued the state roughly one month ago, alleging New Jersey's COVID-19 mandate, which was handed down in March and has been renewed several times, discriminates against them, and claiming they provided authorities with "detailed safety protocols" that state officials never addressed "in any meaningful way."

In addition to the National Association of Theatre Owners, the plaintiffs include the National Association of Theatre Owners of New Jersey, American Multi-Cinema Inc., Cinemark USA Inc., Regal Cinemas Inc., BJK Entertainment Inc., Bow Tie Cinemas LLC and Community Theaters LLC.

On July 14, Judge Martinotti declined to grant a request to keep movie theaters open while the lawsuit proceeds, siding with the state's argument that other regions have begun re-closing newly reopened businesses due to the resurgence of COVID-19 cases.

The cinemas are represented by Geoffrey S. Brounell, Robert Corn-Revere, Janet Grumer, Martin L. Fineman and John D. Freed of Davis Wright Tremaine LLP.

Murphy and state Health Commissioner Judith Persichilli are represented by Jeremy Feigenbaum, Daniel M. Vannella, Deborah A. Hay, Bryan Edward Lucas, Robert J. McGuire, Jessica Jannetti Sampoli and Michael R. Sarno of New Jersey's Office of the Attorney General.

The case is National Association of Theatre Owners et al. v. Murphy et al., case number 3:20-cv-08298, in the U.S. District Court for the District of New Jersey.

--Additional reporting by Bill Wichert. Editing by Aaron Pelc.

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