PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2732

____________

CHARLES CLARK, III; SOLID ROCK BAPTIST 

CHURCH, New Jersey not-for-profit corporation; BIBLE 

BAPTIST CHURCH OF CLEMENTON, New Jersey not-forprofit corporation; CHARLES CLARK, JR.; 

PASTOR ANDREW REESE,

Appellants

v.

GOVERNOR OF THE STATE OF NEW JERSEY; 

ATTORNEY GENERAL OF THE STATE OF NEW 

JERSEY; PATRICK J. CALLAHAN, Superintendent of State 

Police and State Director of Emergency Management in his 

official capacities; JILL S. MAYER; THOMAS J. WEAVER; 

CHIEF CHARLES GROVER; RICK MILLER; MILLARD 

WILKINSON; RICHARD A. DE MICHELE; CHERYL R. 

HENDLER COHEN

_________________

On Appeal from the United States District Court

for the District of New Jersey

(District Court No. 1:20-cv-06805)

District Judge: Honorable Renee M. Bumb

_________________
2

Argued August 23, 2022

(Filed: November 28, 2022)

Before: Greenaway, Jr., Matey, and Rendell, Circuit Judges.

David C. Gibbs, Jr.

Jonathan D. Gibbs

Seth J. Kraus

GIBBS & ASSOCIATES

6398 Thornberry Court

Mason, OH 45040

Brian D. Tome [Argued]

REILLY MCDEVITT & HENRICH

3 Executive Campus

Suite 310

Cherry Hill, NJ 08002

Walter S. Zimolong, III

ZIMOLONG LLC

P.O. Box 552

Villanova, PA 19085

Counsel for Appellants

Matthew J. Berns[Argued]

Jeremy Feigenbaum

Robert J. McGuire

Daniel M. Vannella

 Matthew J. Berns withdrew his appearance on October 

31, 2022 after oral argument.
3

OFFICE OF ATTORNEY GENERAL OF NEW JERSEY

DIVISION OF LAW

25 Market Street

Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellees Governor of New Jersey, 

Attorney General of New Jersey, Patrick J. Callahan

George J. Botcheos

1202 Laurel Oak Road

Suite 208

Voorhees, NJ 08043

Counsel for Appellee Thomas J. Weaver, Charles 

Grover, Cheryl R. Hendler-Cohen

__________

OPINION OF THE COURT

_________

RENDELL, Circuit Judge.

Once again, we have been asked to decide whether a 

challenge to long defunct COVID-19 pandemic restrictions 

presents a justiciable controversy.1 Because the in-person 

gathering limits complained of here were rescinded over two 

1 See Cnty. of Butler v. Governor of Pennsylvania, 8 F.4th 226 

(3d Cir. 2021).
4

years ago and it is absolutely clear their return could not 

reasonably be expected to recur, we hold that the case is moot.

I. BACKGROUND

A.

In March 2020, New Jersey Governor Philip Murphy

took a series of measures to respond to the spread of COVID19.0F

2

 In Executive Order (“EO”) 103, he declared a state of 

emergency pursuant to the Civilian Defense and Disaster 

Control Act, N.J. Stat. Ann. § A:9-33, et seq., as well as a 

public health emergency pursuant to the Emergency Health 

Powers Act, N.J. Stat. Ann. § 26:13, N.J. Stat. Ann. These 

declarations empowered the Governor to issue follow-up 

orders addressing the pandemic, an authority he went on to use.

On March 21, Governor Murphy issued EO 107, which, 

inter alia, prohibited in-person gatherings and ordered New 

Jersey residents to “remain home or at their place of 

residence,” except for certain approved purposes, such as an 

“educational, political, or religious reason.” See Solid Rock 

Baptist Church v. Murphy, 480 F. Supp. 3d 585, 589 (D.N.J. 

Aug. 20, 2020) (citing N.J. Exec. Order 107 ¶ 2 (Mar. 21, 

2 Governor Murphy is the lead Defendant-Appellee named in 

this appeal, as he promulgated the relevant executive orders. 

Eight other state and local officials responsible for interpreting

and enforcing the Governor’s orders are also named. In this 

opinion, we refer to these individuals and the Governor

collectively as “Appellees” or “the State.”
5

2020)) (“Solid Rock I”). EO 107 excepted certain categories 

of businesses deemed “essential,” including grocery and liquor 

stores, which could continue to welcome any number of 

persons (consistent with social distancing guidelines). Id. at 

588–89. Violations of EO 107’s proscriptions were

enforceable by criminal prosecution for “disorderly conduct,”

N.J. Stat. Ann. § App. A:9-49. Further, the order granted 

Defendant-Appellee Colonel Patrick Callahan, Superintendent 

of the State Police, “discretion to make clarifications and issue

[related] orders[.]” N.J. Exec. Order 107 ¶ 6 (Mar. 21, 2020).

He exercised that power the same day EO 107 was signed, 

declaring in Administrative Order No. 2020-4 that gatherings 

of ten or fewer persons were presumptively permitted.1F

3

Neither EO 107 nor AO 2020-4 contained an exception for 

religious worship gatherings or other First Amendmentprotected activity.

B.

Plaintiff-Appellants are two New Jersey-based,

Christian congregations, Solid Rock Baptist Church and Bible 

Baptist Church of Clementon, and their respective pastors, 

Andrew Reese and (as co-pastors) Charles Clark III and 

Charles Clark, Jr. Appellants believe that the Holy Bible 

requires them to gather for in-person worship services. 

Although both congregations switched to online services in the 

wake of the Governor’s gathering restrictions, by late May 

3 Colonel Callahan’s clarifying order would, itself, be adopted 

in Governor Murphy’s Executive Order 142, on May 13, 2020.
6

2020 they had resolved to defy those rules and return to inperson worship. After informing state authorities of their 

intention to do so, the two churches held services with more 

than ten persons in attendance. Local police, executive 

officials, and prosecutors—several of whom are named 

Defendant-Appellees2F

4—then participated in issuing and 

pursuing criminal complaints against the Pastors for their 

violations of EO 107 and AO 2020-4. 

Aggrieved by these actions, Appellants filed a 

complaint in the United States District Court for the District of 

New Jersey on June 3, 2020, naming Governor Murphy, New 

Jersey Attorney General Gurbir Grewal, Superintendent 

Callahan, and a slew of local officials as defendants. In the 

complaint, Appellants “challenge[d] Executive Order No. 107 

. . . as further clarified by Administrative Order No. 2020-4,” 

App. 36, asserting that the orders discriminated against religion 

by effectively closing churches while permitting secular 

activities deemed “essential” to operate unimpeded, App. 37. 

Appellants sought relief in the form of “a preliminary and 

permanent injunction enjoining Defendants or their designees 

or agents from enforcing the challenged Orders under any 

‘social distancing’ requirements different from those 

4 These include: Jill S. Mayer, Camden County Prosecutor for 

Clementon Borough; Thomas J. Weaver, Mayor of Clementon 

Borough; Charles Grover, Chief of Clementon Borough Police 

Department; Rick Miller, Mayor of Berlin Borough; Millard 

Wilkinson, Chief of Berlin Borough Police Department; 

Richard A. De Michele, Prosecutor for Berlin Borough; Cheryl 

R. Hendler Cohen, Prosecutor for Clementon Borough. 
7

governing ‘essential’ businesses or services,” “a declaratory 

judgment and preliminary and permanent injunction that the 

challenged Orders are unconstitutional, on their face and as 

applied,” and an award of costs, including attorneys’ fees. 

App. 54. They did not seek damages.

C.

Less than a week after the complaint was filed, on June 

9, 2020, Governor Murphy rescinded EO 107 in relevant part. 

In EO 152, the Governor raised indoor gathering limits to fifty

persons or twenty-five percent room capacity (whichever was

less); the order also permitted outdoor religious gatherings 

without any gathering limits, in recognition of the “particular[] 

importan[ce]” of “religious services” to the functioning of 

society. See N.J. Exec. Order 152 at 4, ¶ 2(f) (June 9, 2020)

(further excepting outdoor political gatherings, such as 

“protests”). The same day, EO 153 rescinded EO 107’s general 

stay-at-home requirement. N.J. Exec. Order 153 ¶ 11 (June 9, 

2020).

EOs 152 and 153 presaged a trend; in the months that 

followed, Governor Murphy progressively relaxed the 

restrictions applicable to religious worship services. On June 

22, 2020, EO 156 further loosened the restrictions applicable 

to Appellants, raising the maximum number of persons 

allowed at an indoor gathering to 100. N.J. Exec. Order 156 ¶ 
8

1 (June 22, 2020).3F

5

 On September 1, EO 183 permitted 

religious gatherings of up to 150 persons. N.J. Exec. Order 183

¶ 4 (Sept. 1, 2020) (retaining a twenty-five-person limit for 

generic secular gatherings). When COVID-19 case rates

trended sharply upward in November, gathering limits were 

tightened for many contexts, but worship services were 

excepted and retained the limits set forth in EO 183. See N.J. 

Exec. Order 196 at 3, ¶ 1 (stating that “religious services” are 

“constitutionally protected”).

On February 3, 2021, EO 219 increased the general 

gathering limit to 150 persons or thirty-five percent capacity 

and, on February 22, EO 225 set a new gathering limit for 

indoor religious services of fifty percent room capacity, with 

no numerical limit. See N.J. Exec. Order 219 ¶ 3 (Feb. 3, 

2021); N.J. Exec. Order 225 at 3–4, ¶ 1 (Feb. 22, 2021) (“[A]t 

certain times, restrictions on [religious worship] gatherings 

should be less aggressive than restrictions on other 

gatherings[.]”); see also N.J. Exec. Order 230 at 5 (Mar. 11, 

2021) (“[R]estrictions on [religious worship] gatherings should 

be less aggressive than restrictions on other gatherings[.]”).

Ultimately, on May 12, 2021, Governor Murphy issued 

EO 239, which eliminated the remaining fifty percent capacity

gathering restriction applicable to religious worship. See N.J. 

5 Although not every executive order discussed herein was 

entered into the record below, we may take judicial notice of 

their content. See, e.g., Union Cnty. Jail Inmates v. Di Buono, 

713 F.2d 984, 988 n.4 (3d Cir. 1983) (taking judicial notice of 

state executive orders).
9

Exec. Order 239 ¶ 6 (May 12, 2021) (conditioning worship 

service attendance on the need for social distancing only). In 

EO 239, the Governor explained that this policy adjustment

was driven by, among other things: (1) the “critical 

knowledge” that had been gained regarding COVID mitigation 

strategies; (2) “expanded access to testing, personal protective 

equipment, and other materials”; (3) reduced infection and 

hospitalization rates; and (4) the substantial progress in 

vaccination rollout. See id. at 4. On May 24, 2021, EO 242 

lifted all remaining numerical gathering limits for nonreligious contexts and rescinded the general social distancing 

guideline for religious services. N.J. Exec. Order 242 ¶¶ 4–6 

(May 24, 2021). On June 4, 2021, EO 244 ended the public 

health emergency in the state. N.J. Exec. Order 244 ¶ 1 (June 

4, 2021).

D.

Governor Murphy’s gradual loosening of restrictions 

impacted Appellants’ parallel action in the District Court. On 

August 8, 2020, the District Court denied Appellants’ motion 

for a preliminary injunction—which had demanded permission 

to worship in groups larger than ten persons—holding that the 

very relief requested had been, “in effect, granted through the 

enactment of Executive Order 156 [permitting 100 persons or 

twenty-five percent capacity at all indoor gatherings].” Solid 

Rock I, 480 F. Supp. 3d at 588. The District Court reasoned 

that EO 156 thus mooted the claim for relief and denied 

without prejudice the remaining claims, which are not relevant 

to this appeal. Id. at 601.
10

One month later, Appellants filed an amended 

complaint. Solid Rock II, 555 F. Supp. 3d at 57. Again, they

presented a narrow claim “challeng[ing] Executive Order

(“EO”) No. 107” as “further clarified by Administrative Order 

(“AO”) No. 2020-4.” Id. at 56. The amended complaint 

focused exclusively on the ten-person gathering limit created 

by those Orders and demanded that said “challenged Orders” 

be declared unconstitutional. Id. at 61. On August 16, 2021, 

the District Court dismissed the amended complaint, holding 

that Appellants’ claims were all moot. Id. at 62. The District

Court observed that “the contested EO 107 was rescinded by 

several of Governor Murphy’s additional orders” and there had 

been no limit on outdoor worship services since June 9, 2020; 

thus, “there can be no dispute that the alleged unlawful 

conduct—EO 107—has been terminated by Defendants.” Id. 

at 61. Nor did the District Court find it sufficiently plausible 

that such restrictions might return: “Plaintiffs present no 

evidence to suggest that the State will again enact measures 

restricting religious worship but worry about the possibility of 

the State’s future response.” Id. (citing Cnty. of Butler v. 

Governor of Pennsylvania, 8 F.4th 226, 233 (3d Cir. 2021) 

(Jordan, J., concurring)).4F

6

 Finally, the District Court held that, 

insofar as Appellants’ claims invited the District Court to 

interfere in the ongoing prosecution of the Pastors, it would 

6 The District Court also reasoned that intervening Supreme 

Court precedent, Roman Cath. Diocese of Brooklyn v. Cuomo, 

141 S. Ct. 63 (2020) and Tandon v. Newsom, 141 S. Ct. 1294

(2021), ensured that the State would not repeat the alleged 

harms. We discuss the relevance of those cases in detail below.
11

abstain under the doctrine of Younger v. Harris, 401 U.S. 37 

(1971). Solid Rock II, 555 F. Supp. 3d at 57.

Appellants timely appealed.

E.

The COVID-19 pandemic and the State’s response

thereto have continued to evolve since this appeal was filed. 

On December 15, 2021, the criminal cases against the 

Appellant Pastors were voluntarily dismissed.5F

7

 Over the fall

and winter of 2021–22, the Delta and Omicron variants led to 

a spike in the reported cases of COVID, prompting Governor 

Murphy to declare a new public health emergency in EO 280, 

issued on January 11, 2022. N.J. Exec. Order 280 at 8 (Jan. 11, 

2022). Although more COVID orders followed in the 

subsequent months, Governor Murphy refrained from 

reimposing any gathering restrictions. On March 4, he lifted 

the public health emergency once again in EO 292. N.J. Exec. 

Order 292 ¶ 1 (Mar. 4, 2022). When case reports trended 

7 As explained above, the prosecutions of the Pastors were 

initiated in May 2020. At Oral Argument, the Panel was 

informed that, for some uncertain period between initiation and 

dismissal, the prosecutions were stayed at the request of the 

parties. The record in the District Court reveals that the action 

against Pastor Reese had been stayed by August 2020, at which 

time a request to stay the parallel prosecution of the Clarks was 

pending in state court. ECF Dkt. 20-cv-6805, Doc. No. 30. 

Both matters had been stayed by April 2021, “in anticipation 

of [the District Court’s ruling].” Doc. No. 74. 
12

upward in May, no health emergency was declared, nor were 

any gathering restrictions implemented.6F

8

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction under 

28 U.S.C. § 1331. We have appellate jurisdiction under 28 

U.S.C. § 1291, regardless of whether the case is moot. See 

Hartnett v. Pennsylvania State Educ. Ass’n, 963 F.3d 301, 305 

(3d Cir. 2020). We review the District Court’s legal 

conclusions de novo and its factual findings for clear error. Id.

III. THE DISTRICT COURT CORRECTLY HELD THIS 

CASE IS MOOT

Before us, Appellants contend that this case is not moot. 

We disagree. The District Court correctly found that the 

Governor’s partial rescission of the orders challenged in the 

amended complaint ended any live controversy. Insofar as the 

prosecutions animated a continuing dispute, their voluntary 

dismissal leaves no escape from mootness. Moreover, it is 

absolutely clear there is not a reasonable likelihood that the

8 See New Jersey COVID-19 Dashboard, NEW JERSEY 

DEPARTMENT OF HEALTH, 

https://www.nj.gov/health/cd/topics/covid2019_dashboard.sht

ml (last visited September 6, 2022); Valentine v. Collier, 960 

F.3d 707, 708 (5th Cir. 2020) (taking judicial notice of state 

COVID statistics).
13

restriction orders will be reimposed, so the voluntary cessation 

doctrine does not save this case.

A.

The jurisdiction of the federal courts is limited to 

“Cases” and “Controversies”. U.S. Const. art. III, § 2, cl. 1. 

“Thus, [we] can entertain actions only if they present live 

disputes, ones in which both sides have a personal stake.” 

Hartnett v. Pennsylvania State Educ. Ass’n, 963 F.3d 301, 305 

(3d Cir. 2020) (citing Summers v. Earth Island Inst., 555 U.S. 

488, 492–93 (2009)). The doctrine of mootness ensures that 

this condition remains “throughout the life of the lawsuit.” See 

Freedom from Religion Found. Inc. v. New Kensington Arnold 

Sch. Dist., 832 F.3d 469, 476 (3d Cir. 2016) (quoting Cook v. 

Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993)); see also 

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (“No matter 

how vehemently the parties continue to dispute the lawfulness 

of the conduct that precipitated the lawsuit, the case is moot if 

the dispute ‘is no longer embedded in any actual controversy 

about the plaintiffs’ particular legal rights.’” (quoting Alvarez 

v. Smith, 558 U.S. 87, 93 (2009))).

If it is impossible for us to grant “any effectual relief 

whatever to the prevailing party,” then the case is moot. See, 

e.g., Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 161 (2016) 

(quoting Knox v. Serv. Emps., 132 S. Ct. 2277, 2287 (2012)); 

see also N.Y. State Rifle & Pistol Ass’n v. City of New York, 

140 S. Ct. 1525, 1526 (2020) (holding that case became moot 

when statutory amendments provided the relief sought); Trump 

v. Hawaii, 138 S. Ct. 377 (2017) (Mem.) (holding that 
14

challenge to expired provision of an executive order was 

moot). Yet, one “recurring situation” in which we are reluctant 

to dismiss a case as nonjusticiable—despite the absence of 

ongoing conduct to enjoin—occurs where the defendant claims 

the matter has become moot owing to his voluntary cessation 

of the challenged action. Hartnett, 963 F.3d at 306–07; see 

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 

(1982) (“Such abandonment is an important factor bearing on 

the question whether a court should exercise its power to enjoin 

the defendant from renewing the practice, but that is a matter 

relating to the exercise rather than the existence of judicial 

power.”). In such cases, the defendant asserting mootness 

bears a particularly “heavy burden”: it must be “absolutely 

clear that the allegedly wrongful behavior could not reasonably 

be expected to recur.” See, e.g., Fields v. Speaker of the Pa. 

House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019) 

(quoting Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. 

No. 1, 551 U.S. 701, 719 (2007)).7F

9

Here, Appellees contend that Governor Murphy’s 

rescission of the relevant portions of EO 107 (which AO 2020-

4 purported to apply) has rendered this case moot. Indeed, 

Appellees point out, indoor religious worship services in New 

Jersey have not been subject to any capacity restrictions for 

9 Further, “[w]hen a plaintiff seeks declaratory relief, a 

defendant arguing mootness must show that there is no 

reasonable likelihood that a declaratory judgment would affect 

the parties’ future conduct.” Hartnett, 963 F.3d at 306 

(citations omitted).
15

well over a year; so, “[t]here is simply no prospective relief left 

for this Court to grant.” Appellees’ Br. at 13. Appellants reply 

that the case appears moot only because of the Governor’s

unilateral rescission of his COVID orders, meaning that the 

voluntary cessation doctrine imposes its “heavy burden” on 

any claim of mootness. In turn, Appellees seek to meet that

burden by pointing to several factors, including the radically 

changed public health situation and the lack of renewed 

gathering restrictions during the Delta and Omicron waves. 

Appellants also contend that the District Court 

incorrectly saddled them with the burden of showing a 

likelihood of recurrence. See Solid Rock II, 555 F. Supp. 3d at 

61 (“Plaintiffs present no evidence to suggest that the State will 

again enact measures restricting religious worship but worry 

about the possibility of the State's future response.”). We agree

the District Court should have been clearer that the State, as 

“the party claiming mootness,” bore the burden of 

demonstrating that it was absolutely clear there was no

reasonable likelihood of recurrence. See Hartnett, 963 F.3d at 

307 (citation omitted). As noted above, that burden is 

especially heavy where the claim of mootness is based on 

voluntary cessation of the challenged conduct. Id. at 307 

(citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. 

(TOC), Inc., 528 U.S. 167, 189 (2000)). However, this error 

does not impact our analysis as we review whether this case is 

moot de novo. See Hamilton v. Bromley, 862 F.3d 329, 333 

(3d Cir. 2017).

For the reasons discussed below, we conclude that the 

controversy over Governor Murphy’s orders ended with their 
16

rescission and Appellees have carried their burden of showing

that it is absolutely clear that recurrence is not reasonably 

likely.8F

1.

This case is facially moot. The relevant portions of EO

107 and AO 2020-4 were rescinded by Governor Murphy over 

two years ago; thus, there is no “effectual relief whatsoever” 

that this Court may grant in relation to those orders. See

Campbell-Ewald Co, 577 U.S. at 161. In the amended 

complaint, Appellants chose to put their challenge narrowly

and identify those orders alone as the objects of their ire—

despite knowing that New Jersey’s COVID regime had already 

begun to relax. The choice to confine the scope of litigation 

meant the Governor’s first steps towards reopening rendered 

Appellants’ amended complaint moot-on-arrival.

More broadly, the Governor’s orders ceased to disfavor 

religion (even in relation to so-called “essential” businesses) 

no later than February 22, 2021, when EO 225 ended that 

suspect imbalance. Compare N.J. Exec. Order 225 ¶ 1 (Feb. 

22, 2021) (raising indoor religious worship capacity limit to 

fifty percent) with N.J. Exec. Order 122 ¶1(a) (Apr. 8, 2020)

(setting maximum “essential retail business” occupancy at fifty

percent).9F Even if we were to be charitable and read the

amended complaint as raising a challenge to any COVIDbased gathering restriction on religious worship, then 

Appellants still received the very relief sought in May 2021, 

when the last gathering restrictions ended. See N.J. Exec. 

Order 239 ¶ 6 (May 12, 2021) (limiting religious service 
17

attendance based only on the need for social distancing); N.J. 

Exec. Order 242 ¶ 10 (May 24, 2021) (rescinding EO 239’s 

social distancing condition); Brach v. Newsom, 38 F.4th 6, 11 

(9th Cir. 2022) (challenge to executive COVID orders was 

moot after rescission of all such orders, where action had 

sought injunctive and declaratory relief); Eden, LLC v. Justice, 

36 F.4th 166, 169 (4th Cir. 2022) (same). It thus appears that 

this Court cannot grant any effectual relief to Appellants, so 

their claims are no longer justiciable.10F

10

2.

Nonetheless, Appellants insist the case remains 

justiciable under the voluntary cessation doctrine, correctly 

observing that “even if the government withdraws or modifies 

a COVID restriction in the course of litigation, that does not 

necessarily moot the case.” Tandon, 141 S. Ct. at 1297

(emphasis added). They argue that the State has failed to meet 

its burden of showing that it is absolutely clear a return to 

10 Appellants argue that their claim for attorneys’ fees has not 

been vindicated, thus keeping the case alive. Not so. See, e.g., 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) 

(“An ‘interest in attorney’s fees is . . . insufficient to create an 

Article III case or controversy where none exists on the merits 

of the underlying claim.’” (quoting Lewis v. Cont’l Bank Corp., 

494 U.S. 472, 480 (1990))); Ivy Club v. Edwards, 943 F.2d 270, 

276 (3d Cir. 1991) (“[A]n interest in attorneys’ fees does not 

save a matter from mootness.”).
18

restrictions on religious worship is not reasonably likely, so we 

ought to opine on the legality of the defunct orders.

Before facing that proposition head-on, we pause to

clarify the scope of our inquiry. For Appellants to prevail, we 

need not conclude it is likely that the exact same restrictions 

contained in EO 107 (and AO 20202-4) will return. At the 

same time, it is not as though the chance of any future COVIDrelated restrictions on Appellants’ religious exercise will do. 

Rather, the hypothesized restriction must be “‘similar’ enough 

to the [original restriction] to present substantially the same 

legal controversy as the one presented” here. See, e.g., 

Resurrection Sch. v. Hertel, 35 F.4th 524, 528 (6th Cir. 2022) 

(citing Ne. Fla. Chapter of Associated Gen. Contractors v. City 

of Jacksonville, 508 U.S. 656, 662 n.3 (1993)). 1

Appellants’ amended complaint attacked an indoor 

gathering limit of ten persons and observed that certain secular 

activities were subject to more generous rules. Logically, then, 

a reasonable likelihood that Governor Murphy will, say, 

impose a ninety percent capacity limit on all indoor gatherings, 

or create a restriction that treats churches more favorably than 

grocery stores, would not suffice. We would not be 

contemplating the resurrection of the current controversy, but 

the creation of a new one, even if some legal issues recurred. 

Thus, Appellees’ burden amounts to convincing us that it is 

absolutely clear that it is not reasonably likely they will reimpose severe in-person gathering restrictions applicable to 

religious worship services, nor differential burdens favoring 
19

secular over religious gatherings. Several considerations 

persuade us this burden is met.11

First, as we have noted, mootness concerns itself with 

whether the same legal controversy will recur. The 

controversy here has two aspects to it: (1) whether the same 

precise situation—the pandemic such as it presented itself in 

2020 and 2021—will occur again; and (2) whether the 

Governor will respond to that situation by imposing

restrictions similar enough to those he imposed in 2020 and 

2021, such that it presents “substantially the same legal 

controversy as the one presented” here. Resurrection Sch., 35 

F.4th at 528. It is absolutely clear that neither of those aspects 

are reasonably likely to recur. Regarding the likelihood that 

the same pandemic conditions we faced in 2020-21 will repeat 

themselves, it is hard to imagine that we could once again face 

11 The dissent appears to require some definitive statement or 

assurance from the Governor that, even if the same pandemic 

conditions reoccurred, he would not impose restrictions on 

religious gatherings. First, why would we require a

government official to engage in that kind of speculation based 

on hypothetical facts? The dissent does not say. Second, and 

more importantly, Appellees’ task is not to offer us absolute 

certainty that the restrictions will not happen again; instead, 

they must show it is “absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.” 

Fields, 936 F.3d at 161 (quoting Parents Involved in Cmty. 

Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007))

(emphasis added). Appellees have done precisely that.
20

anything quite like what confronted us then. Moreover, the 

public health outlook has changed dramatically since the dark 

days of March 2020, when the ten-person gathering limit was 

implemented. Our knowledge of the virus and its vectors of 

transmission, the rollout of vaccines, and the availability of 

therapeutic responses to infection have totally changed the 

nature of the disease itself, our understanding of it, and our 

response to it. The accumulation of those changed 

circumstances thus make the return of the same pandemic and 

the same restrictions unlikely. See, e.g., Cnty. of Butler, 8 F.4th 

at 23012F

12; id. at 233 (Jordan, J., concurring); Lighthouse 

12 In County of Butler v. Governor of Pennsylvania, 8 F.4th at 

226, we held that a challenge to various Pennsylvania COVID 

restriction orders was moot, id. at 232. That conclusion was 

based on changed circumstances (1) on “the health front” and 

(2) “on the legal front.” Id. at 230. Regarding the latter, we 

explained that “[a]n amendment to the Pennsylvania 

Constitution and a concurrent resolution of the 

Commonwealth’s General Assembly now restricts the 

Governor’s authority to enter the” sort of orders challenged in 

the case. Id. Here, Appellants and the dissent contend 

vigorously that Butler can be distinguished from the present 

action, as New Jersey’s Governor still has the legal authority 

to issue COVID restrictions. We disagree. Although the 

change in the law was a factor in Butler, because we noted that 

the Pennsylvania Health Secretary retained the authority to 

issue comparable COVID orders and yet still held the case was 

moot, the change was undoubtedly not a necessary condition 

for our holding. Id. at 231 (“Plaintiffs have not carried [their]

burden [under the capable-of-repetition doctrine]. Plaintiffs 
21

Fellowship Church v. Northam, 20 F.4th 157, 164 (4th Cir. 

2021); see also Brach, 38 F.4th at 15 (same medical factors 

suggest that school closures will not return). Governor 

Murphy relied on these facts when he eliminated the remaining 

gathering restrictions in May 2021. See, e.g., N.J. Exec. Order 

239 at 1–7. As we have no reason to doubt the sincerity of that 

justification, see Cnty. of Butler, 8 F.4th at 230–31 (describing 

the presumption of good faith accorded government officials), 

the Governor’s motivation further supports mootness: we are 

generally less skeptical of voluntary cessation claims where the 

change in behavior was unrelated to the relevant litigation, see

id. (holding voluntary cessation burden did not save the case

because the challenged orders were not terminated “as a 

response to the litigation”); Hartnett, 963 F.3d at 306–07

(“[T]he defendant’s reason for changing its behavior is often 

probative of whether it is likely to change its behavior again. . 

. . [I]f the defendant ceases because of a new statute or a ruling 

in a completely different case, its argument for mootness is 

much stronger.”) (citations omitted). Thus, New Jersey’s 

acknowledged medical progress militates against a reasonable 

have pointed only to the fact that the Secretary of Health still 

claims the power to issue orders of the sort before us now.”). 

Our decision in Butler thus provides strong precedential 

support for mootness here. True, as the dissent notes, we were 

proceeding under the capable-of-repetition doctrine of 

mootness, but the health factors we identified as supporting 

mootness in Butler are still present here and point in the same 

direction, yet the dissent offers no reason why the voluntary 

cessation doctrine requires us to disregard those same health 

factors when evaluating mootness in this case.
22

likelihood of a recurrence of the same pandemic and similar 

future gathering restrictions.13

Second, Appellees can point to a track record since May 

2021 of declining to reimpose gathering restrictions, even 

during periods when COVID case rates increased 

precipitously. The fact that such restrictions did not return

during the Delta and Omicron waves—nor during the less 

extreme increase of May 2022—indicates that gathering 

restrictions are reasonably unlikely to return as a COVID 

mitigation measure. See, e.g., Eden, LLC, 36 F.4th at 171 (“If 

there were any reasonable chance that the [West Virginia] 

Governor might reimpose the safety measures at issue . . . then 

those waves of increased infection should have been the 

occasion for doing so. But they were not, and like other courts, 

we see that as a powerful signal that whatever course the 

COVID-19 pandemic takes, a return to restrictions like those 

challenged here is highly unlikely.”) (citation and quotation 

marks omitted); see also Brach, 38 F.4th at 14 (state’s 

13 The dissent urges that this case should be controlled by West 

Virginia v. EPA, 142 S. Ct. 2587 (2022). But that case is easily 

distinguishable. There, the event that would trigger recurrence 

of the challenged policy—i.e., the resolution of the litigation in 

the government’s favor—could very easily happen, and the 

government was unwilling to say it would not impose the 

policy again if it did. See 142 S. Ct. at 2607. Here, the 

triggering event of a similar pandemic is not likely to recur. 

And to be clear, the discussion of mootness in West Virginia

consists of two paragraphs—another reason why the discussion 

there cannot bear the weight the dissent places on it.
23

continuation of in-person school instruction during variant 

wave supported mootness); Hertel, 35 F.4th at 530–31 (Moore, 

J., concurring) (state’s decision to forgo school mask mandate 

during variant waves supported mootness). Appellants have

even demonstrated a unique reluctance to tighten restrictions 

on religious exercise. During the winter of 2020–21, when 

most gathering contexts were subjected to decreased 

occupancy limits, religious worship was excepted. See N.J. 

Exec. Order 196 ¶ 1. This made sense given the Governor’s 

expressed respect for religious freedom in his executive orders, 

starting with EO 152 in early June 2020.13F

14 15

14 Granted, the early executive orders did burden religious 

worship gatherings, a fact we address further below. But the 

point remains: if New Jersey officials were remotely likely to 

reimpose some form of gathering restriction, then they would 

have done so when case rates exploded because of the more 

transmissible Delta and Omicron variants, but they did not.

15 Appellants point out that Governor Murphy has continued to 

extend the state of emergency pursuant to the Disaster Control 

Act, despite ending the public health emergency declared 

under the Emergency Health Powers Act. See N.J. Exec. Order 

292 at ¶ 1–2. The continuation of the emergency state means, 

in turn, that Governor Murphy still has the authority to issue 

COVID restrictions—a condition Appellants and the dissent 

tell us defeats the State’s ability to meet its voluntary cessation 

burden. But the mere fact that Governor Murphy retains the 

power to reinstate the restrictions complained of does not mean 

we have a live controversy. See, e.g., Rendell v. Rumsfeld, 484 

F.3d 236, 242 (3d Cir. 2007) (“[S]tatutory changes that 
24

Third, in the years since EO 107 was promulgated, there 

has been significant, intervening Supreme Court precedent. In 

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. at 63, 

and Tandon v. Newsom, 141 S. Ct. at 1294, the Court 

emphasized that “government regulations are not neutral and 

generally applicable, and therefore trigger strict scrutiny under 

the Free Exercise Clause, whenever they treat any comparable 

secular activity more favorably than religious exercise,” 

Tandon, 141 S. Ct. at 1296. This rule provided state officials 

with crucial guidance in shaping any future COVID 

restrictions, instructing them that such regulations must be 

neutral and generally applicable in all but the narrowest of 

circumstances. We believe there is no reasonable likelihood

that the State will tempt fate by reimposing restrictions 

disfavoring religion in the teeth of this caselaw. See, e.g.,

Hawse v. Page, 7 F.4th 685, 693 (8th Cir. 2021) (“Even in the 

hypothetical event that the County were to reinstate gathering 

limits of fewer than ten persons, there is no reasonable 

expectation that the County would flout the Supreme Court’s 

discontinue a challenged practice are usually enough to render 

a case moot, even if the legislature possesses the power to 

reenact the statute after the law suit is dismissed.”) (internal 

citations and quotation marks omitted); Bos. Bit Labs, Inc. v. 

Baker, 11 F.4th 3, 10 (1st Cir. 2021) (“That the Governor has 

the power to issue executive orders cannot itself be enough to 

skirt mootness, because then no suit against the government 

would ever be moot. And we know some are.”) (citations 

omitted). Nor does the existence of a state of emergency show 

that a return to gathering restrictions is reasonably likely. See, 

e.g., Eden, LLC, 36 F.4th at 172 n.5.
25

intervening pronouncements on equal treatment between 

religious exercise and comparable secular activity.”); Hertel, 

35 F.4th at 529.16

Appellants argue that Governor Murphy has shown a 

lack of respect for these precedents by failing to issue relaxed 

COVID guidance fast enough after they were announced. 

16 Appellants direct us to the Supreme Court’s holding in 

Diocese of Brooklyn that rescission of COVID restrictions 

might not moot a case where the defendant “regularly changes” 

the regime applicable to the plaintiffs. 141 S. Ct. at 68. There, 

New York had implemented a geographic risk classification 

system that resulted in rapid changes—sometimes several in a 

single week—to the capacity caps applicable to houses of 

worship. Id. at 69 n.3. That situation kept the case alive 

because petitioners lived under “a constant threat” that they 

would again be subjected to a harsher classification. Id. at 67–

68. The instant case is plainly distinguishable. As detailed 

above, Governor Murphy progressively loosened restrictions 

on religious worship services starting in June 2020. The 

regulations applicable to religious exercise have moved in only 

one direction in New Jersey: towards increased freedom. 

Appellants have not been subject to any numerical or capacity 

limits on their worship gatherings since May 2021, well over a 

year ago. There is thus no comparison to be made with the 

New York system of sudden, inconsistent, and ongoing 

changes that gave the Diocese of Brooklyn Court pause. See 

Brach, 38 F.4th at 14–15. For the same reasons, we do not 

believe that Appellees have the “track record of ‘moving the 

goalposts’” that concerned the Court in Tandon. See 141 S. Ct. 

at 1297.
26

When pressed at oral argument, however, Appellants’ counsel 

conceded that the State’s regime already avoided strict scrutiny 

under the rule of these cases by the time they had both been 

decided. When Tandon came down in April 2021, religious 

worship gatherings were subject to the same fifty percent

capacity limit applicable to essential businesses, and they had

been since February 2021.

Further, although the prosecution of the Pastors 

continued for months after the Supreme Court had implicitly 

cast doubt on the validity of EO 107’s proscriptions, we do not 

take this as persuasive evidence that the Governor and other 

high state officials are dismissive of precedent. As explained 

above, it appears the prosecutions had been stayed when 

Diocese of Brooklyn and Tandon were decided, and they would 

remain so for some time after. It is thus not as though the State 

was actively pressing for convictions in the face of ominous 

caselaw. And we are hesitant to read the actions of municipal

prosecutors as reflecting directly on the views and intentions 

of New Jersey’s highest officials.14F

17

 Although the Attorney 

General does exercise ultimate supervisory authority over local 

prosecutors (subject to the Governor’s oversight), there is no 

unified chain-of-command, and he is not responsible for their 

17 Several local officials are named Appellees, but the scenario 

that Appellants fear is not that these individuals will sua sponte 

reinstitute the prosecutions. Rather, at this stage of the 

litigation, all mootness analysis centers on the Governor, 

asking if state-wide restrictions will return via executive 

orders. Local officials would presumably have no role in that 

critical decision.
27

day-to-day functioning. See Yurick v. State, 184 N.J. 70, 79 

(2005) (citations omitted). The delay in dismissing the 

prosecutions thus reflects on the Governor and his cabinet only 

indirectly.

Finally, even assuming a reasonable likelihood of some

COVID-based gathering restriction returning, it is implausible 

that a challenge to that restriction would constitute the same 

legal controversy as the one before us now. Given Diocese of 

Brooklyn and Tandon, the State is now on notice that religious 

exercise cannot be disfavored relative to comparable secular 

activity, even if the latter is deemed an “essential service” 

during emergency conditions. See Hertel, 35 F.4th at 529 

(“The Supreme Court and other courts have since blocked any 

number of [COVID orders], thereby providing concrete 

examples of mandates and restrictions that violate the Free 

Exercise Clause.”). We have no reason to doubt the sincerity 

of the State’s assurance that it will adhere to these precedents 

in the future.15 See Cnty. of Butler, 8 F.4th at 230–31 (citation 

omitted). Consequently, any future restriction on religious 

worship would likely omit the key legal issue raised in

Appellants’ amended complaint: that “[Appellees’] Orders are 

not neutral laws of general applicability because they target 

constitutionally protected activity . . . all the while providing 

broad exemptions for many secular activities[.]” Amend. 

Compl. ¶ 4.

In any event, we need not hypothesize further about 

what a renewed COVID restriction regime in New Jersey 

might look like. The point is that the very possibility of such 
28

renewed restrictions is itself speculative, and an analysis of the 

legal status of such hypothesized rules doubly-so.

16

* * * * *

In sum, we are persuaded that this case is moot, as the 

District Court correctly found. Appellants offer nothing more 

than speculation to suggest that we have a live controversy 

here. They invite us to hypothesize about future scenarios in 

which (a) not only does the COVID-19 pandemic reach crisis 

levels comparable to early-2020, but (b) New Jersey’s 

executive officials will choose to ignore everything—both 

legal and factual—we have learned since those early months 

and bluntly reintroduce legally-suspect gathering restrictions 

on religious worship. This will not do, and we will therefore

affirm.17F

18

18F

19

18 Because the prosecutions of the Pastors were voluntarily 

dismissed, we have no occasion to discuss Younger abstention. 

The dismissed prosecutions do not serve as the sort of 

“continuing injury” that might defeat mootness. See Hartnett, 

963 F.3d at 308.

19 This conclusion addresses Appellants’ request for injunctive 

relief as well their request for a declaratory judgment. As it is 

absolutely clear there is no reasonable likelihood that EO 107 

will be reinstated, there is likewise no reason to think the

declaratory judgment requested would affect the parties’ 

conduct. See Hartnett, 963 F.3d at 306.
MATEY, Circuit Judge, dissenting.

From the outbreaks of Athens, Byzantium, and London, 

to the ravages of smallpox, SARS, and “Swine Flu,” plagues

punctuate the pages of history. When such a potent enemy

appears, it is natural to reach for every weapon, every tool, 

anything that might turn the tide. Anything that ends the 

emergency. But emergencies have long been “the pretext on 

which the safeguards of individual liberty have been eroded—

and once they are suspended it is not difficult for anyone who 

has assumed such emergency powers to see to it that the 

emergency will persist.” 3 F.A. Hayek, Law, Legislation and 

Liberty 124 (1979). Guarding against that threat is one reason 

the permanent guarantees of our natural rights were recognized 

in the Constitution. And examining whether those guarantees 

have been honored or breached is part of the “virtually 

unflagging obligation of the federal courts to exercise the 

jurisdiction given them.” Colo. River Water Conservation Dist. 

v. United States, 424 U.S. 800, 817 (1976).

The majority concludes that Governor Murphy’s choice 

to place significant limitations on religious gatherings is no 

longer a live controversy because those restrictions were 

relaxed and eventually withdrawn. But the Governor changed 

course unilaterally, not as the result of any legal force. Neither

Governor Murphy nor New Jersey’s Attorney General has ever 

hinted, let alone assured, that the Governor will not reimpose

those same limits down the long COVID-19 road. And neither 

acknowledge any boundaries on the Governor’s emergency

powers in the decisions of the Supreme Court, or even in the 

Constitution. Caveats all insufficient to carry the “heavy” 

burden, West Virginia v. EPA, 142 S. Ct. 2587, 2607 (2022), to 

sidestep judicial review of these restrictions on religion. As the 

longstanding limits on mootness do not relax for COVID-19
2

controversies, I would remand the matter to the District Court

and so respectfully dissent.

I.

Mootness means a once live dispute “is no longer 

embedded in any actual controversy about the plaintiffs’ 

particular legal rights.” Alvarez v. Smith, 558 U.S. 87, 93 

(2009). But how a suit became moot matters. If a savvy 

defendant could simply say, “never mind,” and stop the 

offending conduct long enough to win dismissal, the federal 

courts would have little work to do. As a result, “[i]t is well 

settled that a defendant’s voluntary cessation of a challenged 

practice does not deprive a federal court of its power to 

determine the legality of the practice.” City of Mesquite v. 

Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). Instead, we 

ask whether the “allegedly wrongful behavior” has ended, or 

merely paused. Parents Involved in Cmty. Sch. v. Seattle Sch. 

Dist. No. 1, 551 U.S. 701, 719 (2007). Understandably, any 

answer is no more than a prediction. So we look at the 

circumstances to see if the defendant “could reasonably be 

expected to engage in the challenged behavior again.” Hartnett 

v. Pa. State Educ. Ass’n, 963 F.3d 301, 306 (3d Cir. 2020). 

Naturally, “the defendant’s reason for changing its behavior is 

often probative.” Id. Did the defendant merely “yield[] in the 

face of a court order” while still maintaining “that its conduct 

was lawful all along”? Id. Or did the defendant stand down 

“because of a new statute or a ruling in a completely different 

case”? Id. at 307. Either way, it must be “absolutely clear” that 

the same acts could not “reasonably be expected to recur.” 

West Virginia v. EPA, 142 S. Ct. at 2607 (quoting Parents 

Involved, 551 U.S. at 719). A “heavy” burden that, as the 
3

majority explains, rests solely with the State. Maj. Op. at 12;

see also West Virginia v. EPA, 142 S. Ct. at 2607.

A.

Governor Murphy has not carried this formidable 

burden. The Governor starts by saying he has already taken 

back the limits on worship. But the Supreme Court has 

answered that excuse, explaining that “even if the government 

withdraws or modifies a COVID restriction in the course of 

litigation,” it “does not necessarily moot the case.” Tandon v. 

Newsom, 141 S. Ct. 1294, 1297 (2021). Governor Murphy then 

adds there are no current plans to reimpose the capacity limits. 

A carefully cabined answer more alarming than assuring. Next, 

he recalls the urgency of COVID-19, reminding us this

“unprecedented pandemic” and “rapidly worsening crisis” 

required a wide “range of social mitigation measures” in March 

2020. Response Br. 5–6. Severe circumstances that left no 

room to accommodate religious services—but not severe 

enough to close liquor stores and pet shops. App. 85–86.

Finally, Governor Murphy points to his decision to unilaterally 

“decline[] to reimpose indoor or outdoor capacity limits on 

religious gatherings.” Response Br. 8. From which we must 

infer that he and the New Jersey Attorney General consider the 

First Amendment subordinate to their emergency powers,

powers they may or may not “decline” to exercise against 

religious worship. They will let us all know when the time 

arrives.

Respectfully, that is not how the voluntary cessation 

doctrine works, a point emphasized by the Supreme Court 

mere months ago in West Virginia v. EPA. There, the Court 

considered whether a proposed rule to regulate carbon dioxide 
4

fit within the authority provided by Congress. When faced with 

a challenge, the Government announced plansto change course 

and promised to promulgate a new regulation. A proposal, the 

Government claimed, that “mooted the prior dispute.” 142 S. 

Ct. at 2607. Not so, said the Court, because “the Government’s 

mootness argument boils down to its representation that EPA 

has no intention of enforcing” the old plan. Id. That does not 

shoulder the “heavy burden” of showing “it is absolutely clear 

that the allegedly wrongful behavior could not reasonably be 

expected to recur.” Id. (citation omitted). Indeed, the 

Government in that case “nowhere suggested that if the

litigation were resolved in its favor it would not” reimpose the 

same challenged policy. Id. (cleaned up). Instead, it 

“vigorously defend[ed]” the legality of its proposal. Id.

More so here. Governor Murphy does not suggest he 

has no intention to reimpose limits on worship, only that he has 

no current plans on the table. Not once has the Governor stated 

he lacks the power to curtail religious freedoms for 

emergencies. Nor has the New Jersey Attorney General ever 

questioned the prosecution of Plaintiffs for violating the 

challenged Executive Order, a case that lingered until briefing 

began on this appeal.

1 Or acknowledged the Supreme Court’s

decisions in Catholic Diocese and Tandon, which confirm that 

1 Oral Argument at 22:50, Clark v. Governor of N.J., __ 

F.4th __ (3d Cir. 2022) (No. 21-2732), 

https://www2.ca3.uscourts.gov/oralargument/audio/21-2732_

Clarkv.GovernorStateNJ.mp3. The Governor now tries to 

distance himself from the county prosecutions. But a “county 

prosecutor’s law enforcement function . . . remains at all times 

subject to the supervision and supersession of the State.” 

Yurick v. State, 184 N.J. 70, 79 (2005) (cleaned up). 
5

emergencies do not permit state action to abandon the promise 

of freely exercised faith. “Trust me,” is all Governor Murphy 

serves up.

That, of course, is the one answer we have not accepted. 

Take our recent decision in County of Butler v. Governor of 

Pennsylvania, 8 F.4th 226 (3d Cir. 2021), cert. denied, 142 S. 

Ct. 772 (2022), where we considered a challenge to 

Pennsylvania’s COVID-19 orders closing businesses and 

limiting secular gatherings. A moot challenge, we explained, 

because the “Governor’s orders are no longer in effect and . . . 

he has been stripped of his power to unilaterally act in 

connection with this pandemic.” Id. at 230 (emphasis added).

Or consider our analysis in Hartnett. There, teachers 

challenged a Pennsylvania statute allowing unions to collect 

fees from nonmembers. While the lawsuit progressed, the 

Supreme Court invalidated a similar statute, a change of law 

the parties agreed made Pennsylvania’s law unenforceable.

That, we held, satisfied the mootness exception. We explained 

that once the Supreme Court spoke, “the unions immediately 

stopped collecting agency fees.” Hartnett, 963 F.3d at 307.

And the unions “conceded that Pennsylvania’s agency-fee 

arrangement violates the First Amendment and have forsworn

collecting fees from nonmembers.” Id. (emphasis added). The 

holdings in Butler and Hartnett both turn on external legal 

constraints on the defendant’s prior conduct, where “the claims 

became moot for reasons outside the parties’ control.” Butler, 

8 F.4th at 232. Whether that new law is decisional, statutory, 

or constitutional, it is strong evidence that informs our focus

“on whether the defendant made that change unilaterally and 

so may ‘return to [its] old ways’ later on.” Hartnett, 963 F.3d 

at 307 (quoting City of Mesquite, 455 U.S. at 289 n.10)

(alteration in original).
6

Nothing of the sort has occurred here: no concessions of 

illegality, no foresworn future restrictions, no divesting of 

power. Governor Murphy retains his statutory authority to act 

at his pleasure. The state’s Constitution has not been altered, 

and no court, including ours, has stepped up to consider the 

rights reserved by the First Amendment. Respectfully, that has 

never been enough to evade the powers vested in the judiciary 

by Article III. And I see three problems that will likely follow 

our holding today.

B.

First, while the majority invokes the old mootness test, 

it applies something softer. The majority points out that it must 

be “absolutely clear that the allegedly wrongful behavior could 

not reasonably be expected to recur.” Parents Involved, 551 

U.S. at 719 (emphasis added). But the majority only recitesthis

standard, rather than rigorously holding the Governor to his 

“formidable burden,” Hartnett, 963 F.3d at 307, permitting 

him to dismiss, not defend, his decisions. Instead, the majority 

rests on its doubt “that the State will tempt fate by reimposing 

restrictions disfavoring religion.” Maj. Op. at 21. That flips the 

holdings of West Virginia v. EPA and a host of prior decisions,2

recasting the heavy burden of absolute certainty with the light 

2 What the majority points to as a distinction between 

this case and West Virginia v. EPA is in fact a similarity. The 

majority notes that the Court there did not find the dispute moot 

in part because “the government was unwilling to say it would 

not impose the policy again.” Maj. Op. at n.13. I agree. And 

the Government here has been similarly coy. 
7

weight of mere skepticism and setting a much lower hurdle for 

the Governor to clear.

Second, the majority repeats the error of the District 

Court and conflates two separate mootness exceptions that 

carry two distinct burdens. On the one hand, there are cases in 

which the plaintiff’s alleged injury has disappeared through no 

action of the defendant. That will make the matter moot unless 

the plaintiff can show the duration of the challenged action is 

too short to be fully litigated and “there is a reasonable 

expectation that the same complaining party will be subjected 

to the same action again.” United States v. Sanchez-Gomez, 

138 S. Ct. 1532, 1540–41 (2018) (citation omitted). This is the 

“capable of repetition, yet evading review” exception. Id. at 

1540 (citation omitted). And the burden of showing the issue 

is “capable of repetition” rests only with the plaintiff. 

Voluntary cessation, on the other hand, places that “heavy 

burden” on the defendant. West Virginia v. EPA, 142 S. Ct. at

2607.

The majority yokes the wrong party.

3 The opinion

repeatedly looks to the facts in Butler. But that case involved 

the “capable of repetition” exception, not voluntary cessation. 

And the former “applies only in exceptional situations,” where 

the burden rests with the plaintiff. Butler, 8 F.4th at 230–31 

(citation omitted). That allocation makes all the difference. The 

plaintiffs, we explained, could not carry their burden because 

Pennsylvania changed the law to prevent the same measures 

3

Indeed, the majority explicitly shifts the burden from 

the Governor to the challengers, concluding that “Appellants 

offer nothing more than speculation to suggest that we have a 

live controversy here.” Maj. Op. at 24.
8

from returning. Id. at 232. Nor did they offer anything to rebut 

the Commonwealth’s representations “that the public health

landscape has so fundamentally changed” that future policies 

would not resemble the past. Id. at 231. A point, we noted, 

“[p]laintiffs here have given us little reason to disbelieve.” Id.

Here, of course, there is every reason. That is the 

purpose of the heavy burden against accepting voluntary 

cessation claims on no more than the moving party’s say-so. 

Perhaps a presumption of governmental good-faith has some 

application in “capable of repetition” cases challenging state 

actions like Butler; the burden is already on the plaintiff who 

must offer facts showing “a reasonable expectation . . . [they] 

will be subject to the same action again.” Id. at 231 (citation 

omitted). Extending that “presumption,” if it truly exists,4to 

voluntary cessation would give governmental actors the keys 

to get out of almost any lawsuit simply by citing their own good 

intentions. The result in West Virginia v. EPA confirms that is 

not correct.

4 Butler relies on Marcavage v. National Park Service, 

666 F.3d 856, 861 (3d Cir. 2012) for the proposition that “[w]e 

generally presume that government officials act in good faith.” 

Butler, 8 F.4th at 230. Language Marcavage borrowed from 

Bridge v. United States Parole Commission, 981 F.2d 97, 106 

(3d Cir. 1992). But Bridge took that concept from the 

dissenting opinion in Ward v. Rock Against Racism, 491 U.S. 

781 (1989), neglecting, it seems, to note that it is a dissenting 

view. Neither Bridge, a case about parole eligibility 

calculations, nor Ward, a First Amendment challenge to noise 

permits, involves mootness. All making for a most shaky 

foundation, one we should not casually extend into questions 

about Article III. 
9

Finally, Plaintiffs, like the almost nine million residents 

of New Jersey, still do not know whether the First Amendment 

protects their religious obligations and faith tenets, even 

though at the Founding, “the right to religious liberty . . . was 

universally said to be an unalienable right.” Fulton v. City of 

Philadelphia, 141 S. Ct. 1868, 1900 (2021) (Alito, J., 

concurring) (citation omitted); see also Vincent Phillip Muñoz, 

Religious Liberty and the American Founding 229 (2022) 

(“[T]he Founders declared religious liberty to be an inalienable 

natural right.”). A chilling prospect because Executive Order

107 treats religious exercise worse than comparable secular 

activity. Comparability “must be judged against the asserted 

government interest that justifies the regulation at issue,” and 

is “concerned with the risks various activities pose, not the 

reasons why people gather.” Tandon, 141 S. Ct. at 1296

(citation omitted). In Tandon, the Court found “at-home 

religious exercise” comparable to retail shopping. Id. at 1297.

Here, Governor Murphy’s “severe in-person gathering 

restrictions,” Maj. Op. at 16, accommodated alcohol, protected 

pets, and honored home improvement, but found spaces for 

safe worship non-essential. That imposed “differential burdens 

favoring secular over religious gatherings,” id., demanding the 

Governor show a narrowly tailored restriction serving a 

compelling state interest. See Roman Cath. Diocese of 

Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020).

It is unclear why Governor Murphy urgently needs to 

shut down synagogues, churches, and mosques en masse while 

finding room to accommodate a laundry list of businesses. The 

majority implies answering that question can wait, 

rationalizing that it is “hard to imagine” a health emergency 

presenting the State an opportunity to reimpose the ban on 
10

religious worship. Maj. Op. at 17. But no lively imagination is 

needed to conjure up future competitions between public 

health and religious liberty given the volatility of respiratory 

viruses,

5

the increased probability of future pandemics,6and 

the routine declaration of “emergencies” by Governor 

Murphy.

7

I would take the opportunity to provide an answer 

now, giving the people of New Jersey, and its representatives, 

the guidance they are entitled to under the Constitution.

II. 

COVID-19 did not change the standards for mooting a 

case or controversy arising under the laws of the United States. 

Governor Murphy elected to use an emergency power to 

eliminate public religious worship. He has not carried the 

5 See, e.g., Jamie Crow, Telltale Signs of a 

‘Tripledemic’, Johns Hopkins Coronavirus Resource Center 

(Nov. 3, 2022), https://coronavirus.jhu.edu/from-our-experts/

telltale-signs-of-a-tripledemic (“[W]e’re starting to see an 

uptick in some [COVID] variants that are probably among the 

most immune-evasive variants that we’ve seen.”).

6

“Based on the increasing rate at which novel 

pathogens such as SARS-CoV-2 have broken loose in human 

populations in the past 50 years, . . . the probability of novel 

disease outbreaks will likely grow three-fold in the next few 

decades.” Michael Penn, Statistics Say Large Pandemics Are 

More Likely Than We Thought, Duke Global Health Institute 

(Aug. 23, 2021), https://globalhealth.duke.edu/news/statisticssay-large-pandemics-are-more-likely-we-thought. 

7 Some eighteen since 2018. See Executive Orders, State 

of New Jersey, https://nj.gov/infobank/eo/056murphy/

approved/eo_archive.shtml (last visited Nov. 22, 2022).
11

formidable burden of showing, with absolute clarity, there is 

no reasonable probability he will not do so again. Respectfully, 

we should decide whether the Governor’s actions satisfy the 

First Amendment before the next emergency arrives.