Will DOJ File On Maryland Religious Freedom COVID-19 Case?
As already reported by Red Maryland and other media outlets, Delegates Neil Parrott, Dan Cox, and Warren Miller are among the plaintiffs in a federal lawsuit filed against the Hogan Administration challenging state COVID-19 related restrictions. The Republican Delegates joined Reopen Maryland, Adventure Park USA, Antietam KOA, and many religious leaders in filing the lawsuit.
Among the claims made, the suit says that Governor Hogan’s Proclamations of Catastrophic Health Emergency Powers and Executive Orders relating to COVID-19 have “been interpreted, applied, and enforced, including against pastors in Maryland, such that Maryland State Police officers….have visited Maryland churches, …..threatened to impose criminal sanctions against religious gatherings of any kind, even though these churches were engaged in First Amendment-protected activity, were duly operating social welfare and foodbank services, and at their worship services were practicing reasonable and determinable social hygiene and distancing, and were exceeding government CDC and international WHO recommendations.”[i]
According to a Pew Research Center analysis of recent state-level regulations, only 10 states are preventing in-person religious gatherings in any form. Roughly a third of states (15) are allowing religious gatherings to continue without any limit on their size. Twenty-two states and the District of Columbia have specified in their orders that religious gatherings can take place, but only if they are limited to 10 people or fewer. This includes Rhode Island, where gatherings are limited to no more than five people. Two additional states, Connecticut and Oregon, limit religious gatherings to 50 and 25 people, respectively. [ii]
According to the Baltimore Sun, under Governor Hogan’s order, religious services could be carried out as long as they’re in full compliance with “applicable guidance from the Centers for Disease Control and the Maryland Department of Health” when it comes to social distancing, limits on the size of gatherings and cleanliness. The directive states that there may be no more than 10 people “inside the religious facility” during a given gathering, including clergy, staff, and participants, and that those in attendance must maintain a distance of 6 feet between themselves and others present throughout the gathering.” [iii]
The suit against the Governor, however, claims that his orders are being enforced by the Maryland State Police in a manner more like the ten states that are preventing in-person religious gatherings in any form. As such, the suit claims that his Executive Order is not being precisely followed by the State Police.
In recent days the U.S. Department of Justice has intervened in a case challenging Virginia rules that are similar to Maryland’s. The DOJ has filed a brief in LIGHTHOUSE FELLOWSHIP CHURCH v. RALPH NORTHAM that says:
“there is no pandemic exception to the Constitution and its Bill of Rights. Indeed, individual rights secured by the Constitution do not disappear during a public health crisis.[iv] These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always operative and restrain government action. Accordingly, the Supreme Court has instructed courts to intervene if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”[v][vi]
Regarding the Virginia restrictions on religious services, the DOJ brief says: “The facts on this record show that the Commonwealth has imposed limits on religious activity it has not imposed on comparable secular activities.”
This claim in the Virginia case, that religious services are being treated less favorably than other gatherings raises an issue very similar to those in the Maryland case. Unquestionably it will be very interesting to see if the US Justice Department choses to participate in the Maryland case as well.
[iv] In re Abbott, 954 F.3d at 784.
[v] Jacobson, 197 U.S. at 31