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Federal Court Accepts Church’s Challenge to D.C.’s 100-Person Limit on Outdoor Religious Services

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In yesterday’s Capitol Hill Baptist Church v. Bowser, Judge Trevor McFadden (D.D.C.) granted a preliminary injunction allowing the church to hold a large outdoor, masked, socially-distanced worship service in D.C. Judge McFadden applied the federal Religious Freedom Restoration Act, which generally requires the government to grant religious exemptions from generally applicable laws when (1) the law “substantially burdens” religious practice and (2) the government can’t show that denying the exemption is the least restrictive means to a compelling government interest. (The federal RFRA covers the D.C. government as well as other parts of the federal government.)

Here is the core of the court’s analysis as to the strict scrutiny analysis (element 2 noted above):

Under RFRA, the District must prove a compelling interest in banning the specific religious practice at issue: Gathering for religious worship outdoors while wearing masks and socially distancing. As the Sixth Circuit recently explained when enjoining similar restrictions based on Kentucky’s RFRA statute: “The likelihood-of-success inquiry instead turns on whether [the] orders were ‘the least restrictive means’ of achieving these public health interests. That’s a difficult hill to climb, and it was never meant to be anything less.”

The District cannot rely on its generalized interests in protecting public health or combating the COVID-19 pandemic, critical though they may be. Rather, RFRA requires the District to “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” The District has failed to meet its burden at this stage, as it presented little to no evidence that it has a compelling interest in applying its restrictions to ban the type of services that the Church wishes to hold. And some of the scant evidence that does appear in the record cuts against the District’s arguments.

Consider the District’s response to mass protests over the past year, which included thousands of citizens marching through the streets of the city, including along streets that the District closed specifically for that purpose. And the Mayor appeared at one of the mass gatherings, “welcom[ing]” hundreds if not thousands of protestors tightly packed into Black Lives Matter Plaza and announcing that it was “so wonderful to see everybody peacefully protesting, wearing [their] mask[s].” Indeed, Mayor Bowser  christened “Black Lives Matter Plaza” when “she directed the D.C. Department of Public Works to create a mural on 16th Street N.W., near the White House, to ‘honor the peaceful protesters from June 1, 2020 and send a message that District streets are a safe space for peaceful protestors.'”

No matter how the protests were organized and planned, the District’s (and in particular, Mayor Bowser’s) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church’s outdoor services. The Mayor’s apparent encouragement of these protests also implies that the District favors some gatherings (protests) over others (religious services).

When faced with similar facts in a First Amendment challenge, another court explained that high-profile government officials encouraging and participating in protests “sent a clear message that mass protests are deserving of preferential treatment.” Soos v. Cuomo (N.D.N.Y. June 26, 2020). The court noted that the officials—Governor Cuomo and Mayor de Blasio—could have “been silent” or “could have just as easily discouraged protests, short of condemning their message, in the name of public health.” So too here. Mayor Bowser, like Mayor de Blasio, is a high-level government official with “clear enforcement power.” Her actions speak volumes.

The District attempts to distinguish the risks posed by mass “protest marches” from those posed by “worship services in which individuals stand in place for long periods of time,” but it marshaled no scientific evidence on this point. Its main source of support stems from an assertion made by Christopher Rodriguez, Ph.D., Director of the District’s Homeland Security and Emergency Management Agency, in a declaration stating: “Different events present different levels of threat about the spread of COVID-19; for example, the risk is higher for an event involving people standing in one place than for one in which people are moving.”

If this assertion is making a scientific claim, it falls well short of the evidentiary standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). {As pointed out by the Church at the hearing, Dr. Rodriguez earned his Ph.D in political science. He appears to have no medical background.} And even if the Court credited this statement, which it does not, it would not by itself establish that fully-masked and socially distanced outdoor worship is particularly dangerous. In fact, the District’s brief explains that the protests did not trigger any spike in COVID-19 “outbreaks,” undermining the notion that large gatherings are always exceptionally dangerous.

Now months into this public health crisis, the District has had the opportunity to determine with greater particularity the risks presented by COVID-19 and the restrictions necessary; sweeping justifications perhaps more suitable to the early stages of a public health crisis will not suffice. On the record here, the District has not shown that it has a compelling interest in applying its 100-person limit to the Church’s proposed outdoor services.

Even if the District met its burden to show a compelling interest, it would also need to establish that there are no less restrictive means to further that interest than prohibiting the Church from gathering more than 100 congregants within the city. This “least-restrictive-means standard is exceptionally demanding,” as it mandates that if “a less restrictive means is available for the Government to achieve its goals, the Government must use it.” The District insists that “[n]arrower ways to promote public safety would be less effective in preventing the spread of the virus,” yet it neglects to demonstrate how it knows this to be the case. RFRA demands more from the District than bare assertions.

This is especially true when the District currently treats some activities with a lighter hand. Seemingly given a pass are outdoor dining establishments, or “streataries.” The District has permitted hundreds of dining establishments to serve meals outdoors. More than just providing food for consumption, outdoor restaurants serve as focal points for fellowship and communion, not unlike worship services. Yet outdoor dining establishments currently face no limit on the number of patrons they may serve, as “persons sitting outdoors” are not counted for their capacity limitations. Perhaps there are good reasons for this distinction, but the District yet again leaves the Court to speculate.

More, an amicus curiae brief submitted by the Becket Fund for Religious Liberty details the regulations in effect in all 50 states, most which either contain no capacity limitations for outdoor gatherings or explicitly exempt religious gatherings from capacity limitations otherwise in effect. The Court acknowledges the District’s contention that statewide orders in effect in states around the country may not be appropriate comparators for this city, given its size, location, and population density. But that the Church has been congregating across the river in Northern Virginia, where there are no capacity limitations on worship services, casts doubt on the need for the District’s chosen policy. {That the Church may continue to hold services outdoors in Northern Virginia is no [justification for the restriction in D.C.]; the government cannot defeat a RFRA claim merely by telling citizens to go practice their religion in another jurisdiction.}

For its part, the Church outlines other policies, such as holding services outside with mandatory social distancing and mask-wearing, that it suggests are less restrictive but equally effective in mitigating transmission of the virus. The District was, of course, welcome to refute the Church’s claim with evidence of its own. But the Church “must be deemed likely to prevail unless the Government has shown that [the movant’s] proposed less restrictive alternatives are less effective than [enforcing the District’s capacity limit].”  The District has failed to carry its burden on the record here, and therefore the Church has shown that it is likely to succeed on the merits.

Here is the analysis behind the court’s conclusion that D.C.’s 100-person cap on outdoor gatherings substantially burdens religious practice:

To benefit from RFRA’s protections, the Church must first show a substantial burden on its religious exercise….  A “substantial burden” exists when government action rises above de minimis inconveniences and puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”

The Church believes that its congregation must meet in person each Sunday to worship together. The Church traces its commitment in part to “the scriptural exhortation that adherents should ‘not forsak[e] the assembling of ourselves together.'” In a 2012 book, the Church’s Senior Pastor, Dr. Mark Dever, wrote that a “biblically ordered church regularly gathers the whole congregation” because without regularly meeting together, it ceases to be a “biblically ordered church.” …

The sincerity of this belief is evident in the Church’s pre-COVID-19 practices: Unlike many other houses of worship, the Church resisted holding multiple worship services on Sundays, even as attendance approached 1,000 congregants. The Church contends that its religious exercise is substantially burdened by the District limiting all worship services to no more than 100 people—no matter if they are outdoors, wearing masks, and socially distanced—as this has prevented the Church from meeting at all as a congregation since March….

For its part, the District does not dispute the sincerity of the Church’s belief that its members must gather together in person for worship. Rather, it maintains that the Church has nonetheless failed to prove that the District’s restrictions have substantially burdened the Church’s religious exercise—particularly where there are other “methods” of worship available. The District proposes that under its current restrictions the Church could “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as other faith communities in the District have done.

But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. The “substantial burden inquiry asks whether the government has substantially burdened religious exercise . . . not whether [the Church] is able to engage in other forms of religious exercise.”

The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial.” It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25.

Nor should the Court weigh the relative burden to the Church by looking to how easily other religious groups with distinct beliefs have voluntarily changed their worship to accommodate the District’s restrictions. The “question that RFRA presents” is whether the challenged action “imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs.” …

And here is the court’s explanation for why Jacobson v. Massachusetts (1905) (the mandatory smallpox vaccination case) shouldn’t be read as “relax[ing] the heavy burden that would normally fall on” the District:

First, Jacobson addressed whether a state law mandating vaccination violated an individual’s Fourteenth Amendment substantive due process “right to care for his own body and health in such way as to him seems best.” The unique array of claims before the Jacobson Court—such as that the regulation violated the preamble and spirit of the Constitution—included none under the First Amendment. It may very well be that it “is a considerable stretch to read [Jacobson] as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.” Calvary Chapel Dayton Valley v. Sisolak (2020) (Mem.) (Alito, J., dissenting).

{To the extent that the District argues that the Supreme Court “rejected” one or more parts of Justice Alito’s dissent in Calvary Chapel, it is mistaken on the meaning of the Supreme Court’s denial of emergency relief. Such denials are not “decision[s] on the merits of the underlying legal issues.” For instance, the Court may deny relief based merely on the lack of a reasonable probability that at least four Justices will consider the issue sufficiently meritorious to later grant certiorari. So other Justices, and even a majority of the Court, may very well have agreed with Justice Alito’s suspicion of Jacobson and its application to the issues facing the Court. The Court’s meredenial of relief should not be read as indicative of its views on themerits.}

Second, woven into Jacobson is the recognition that at the time the plaintiff refused the vaccination, smallpox was “prevalent and increasing” in the area and posed an acute risk to public health. And we know the feeling: Much of this city and country have faced similar public health risks recently or are facing them currently. In such circumstances, judicial scrutiny may recede to its lowest ebb, leaving room for an energetic response by the political branches to the many uncertainties accompanying the onset of a public health crisis.

But when a crisis stops being temporary, and as days and weeks turn to months and years, the slack in the leash eventually runs out. “While the law may take periodic naps during a  pandemic, we will not let it sleep through one.” Roberts v. Neace (6th Cir. 2020).

Third, and most importantly, the District articulates no reason why Jacobson‘s framework applies when assessing a RFRA claim. The District cites no cases in which a court has applied Jacobson‘s relaxed standard instead of the strict scrutiny test detailed in the statute. And recall that RFRA “did more than merely restore the balancing test used in the [pre-Smith] line of cases; it provided even broader protection for religious liberty than was available under those decisions.” Congress incorporated a specific burden-shifting framework into RFRA. Courts must respect that decision and dutifully apply its scheme.

I think the court’s analysis is correct under RFRA, at least based on the factual record as the court describes it.


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Eugene Volokh

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