Dr. A v. Hochul

Healthcare heroes on the frontlines

In March 2020, Americans gained new appreciation and admiration for doctors, nurses, and other healthcare workers who heroically put their own health and safety on the line day in and day out to help and heal their neighbors.

But now that the worst moments of the COVID-19 pandemic are behind us, doctors, nurses, and other healthcare workers in New York are being punished for abstaining from vaccination on religious grounds. In accordance with a state mandate, healthcare institutions across New York have been forced to fire healthcare workers who refused the COVID-19 vaccine—even when they wanted to keep them on the job, and even when firing them has forced them to close emergency rooms and reduce services.

Lose your job or violate your conscience

On August 18, 2021, then-Governor Andrew Cuomo signed into law a vaccine mandate for the state’s heroic healthcare workers that allowed for religious exemptions along the lines of medical exemptions. But on August 26, 2021, Governor Kathy Hochul suddenly changed course and removed the religious exemption while maintaining the medical exemption.

The mandate went as far as to demand healthcare workers either get vaccinated or lose their jobs. And if they decided to follow their conscience, they would also lose their unemployment benefits as well.

As New York faces a severe shortage of medical professionals, Governor Hochul has made it clear that it was no mistake to omit a religious exemption from the state’s mandate. At the Christian Cultural Center in Brooklyn, Hochul mocked religious Americans with objections to the vaccine, saying “you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”

Seeking emergency relief

Shortly after the governor issued the mandate, Thomas More Society filed a lawsuit against Governor Hochul on behalf of 17 healthcare workers who have religious objections to the COVID-19 vaccine but are willing to undergo frequent testing and use protective clothing at all times onsite. Several of the healthcare workers have natural immunity from already contracting COVID due to their heroic work on the front lines of the pandemic.

In November of 2021, Becket joined Thomas More Society in filing an emergency application to the Supreme Court to end New York’s harmful vaccine mandate. Three Justices would have granted the application, which was ultimately denied. In February 2022, Becket and Thomas More asked the Supreme Court to hear the full case on the merits.

Becket’s and Thomas More’s brief points out that 47 other states, as well as the federal government, protect religious objectors by either not mandating vaccines or by allowing religious exemptions for those with objections to the COVID-19 vaccines.

The Supreme Court denied review on June 30, 2022, sending the case back down to the lower courts. Justices Thomas, Alito and Gorsuch dissented, indicating that they would have granted certiorari now.

South Texas Catholics want Texas to let them carry out their ministry

WASHINGTON – As the fight between the federal government and the State of Texas over the border escalates, South Texas Catholics and the largest temporary migrant respite center in the Rio Grande Valley are caught in the middle. They are asking a federal court to continue their religious mission of serving the most vulnerable. A hearing on the case will be held this morning in El Paso federal district court.

An executive order issued on July 28 by Texas Governor Abbott that prohibits group vehicle transportation of migrants would have the opposite of its intended effect. It means that young families, pregnant mothers, and single women crossing the border may lose access to food, clothing, a place to rest, and a free COVID test. Local Texas communities may also lose a critical partner in preventing the spread of COVID in their community.

Sister Norma Pimentel leads Catholic Charities of the Rio Grande Valley, which runs the Humanitarian Respite Center. Catholic Charities and the respite center are a ministry of the Diocese of Brownsville, headed by Bishop Daniel E. Flores. Sister Pimentel and her team provide food, clothing, medical care, and a place to briefly rest out of the heat for young women and families brought to their doorstep by federal border patrol agents. Since 2014, the Center has served over 100,000 migrants. But in July 2021, Governor Abbott issued an executive order that would stop and impound the cars of people who transport migrants in Texas, supposedly in an effort to limit the spread of COVID. Unfortunately, this order threatens to exacerbate the COVID crisis by preventing Catholic Charities from transporting COVID-positive migrants to quarantine locations. On August 3, the federal district court in El Paso issued a temporary restraining order against Governor Abbott’s order. It will now decide whether to issue an injunction against the order while the lawsuit is pending.

“Caring for the stranger in need has always been at the core of the Catholic faith,” said Eric Rassbach, vice president and senior counsel at Becket. “This order solves nothing and wrongfully endangers Catholic Charities’ religious mission to care for migrants.”

Catholic Charities tests all migrants who arrive at the respite center for COVID; those who test negative are served onsite, while those who test positive are transported to one of several hotels contracted by Catholic Charities or the City of McAllen to serve as a place to quarantine. If the respite center could no longer engage in its ministry, migrants would be dropped by federal border patrol agents at bus stations in the local community without receiving a COVID test, increasing the likelihood of community spread.

“We want to stop the spread of COVID-19 as much as the state does,” said Reverend Daniel E. Flores, bishop of Brownsville, Texas. “But for that to happen, we need the government to let us do what Christ called us to do: minister to the strangers among us in their time of distress.”

In support of the federal government’s legal challenge to Abbott’s July 28 order, Catholic Charities of the Rio Grande Valley filed a friend-of-the-court brief explaining how the order restricts religious exercise, harms migrants, and increases the community spread of COVID.

For more information or to arrange an interview, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Additional Information:

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Becket is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions and has a 100% win-rate before the United States Supreme Court. For over 25 years, it has successfully defended clients of all faiths, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs, and Zoroastrians (read more here).

United States of America v. State of Texas

The Humanitarian Respite Center in McAllen, Texas, ministers to over 1,000 recent migrants each day. The Center was created in 2014 by Catholic Charities of the Rio Grande Valley, a ministry of the Roman Catholic Diocese of Brownsville. The Center has served more than 100,000 migrants to date and is the first stop for many migrant families after they cross the border and are released by law enforcement. At the Center, families dropped off by Border Patrol receive COVID tests and transportation to quarantine locations, if needed. Those without COVID enter the Center to receive basic necessities: medical attention, food, water, temporary shelter from the elements. Catholic Charities then transports them to hospitals, shelters, or on their way to reunite with family.   

Due to the ongoing COVID-19 pandemic, incoming migrants are tested for COVID-19 before entering the Center. Migrants who test positive are safely quarantined at nearby hotels. However, on July 28, 2021, Texas issued an Order forbidding non-governmental entities from transporting migrants anywhere in Texas. While supposedly intended to prevent COVID-19 transmission, the Order in practice would prevent the Humanitarian Respite Center from taking migrants from the Center to local bus stations, airports, hospitals, and more permanent shelters. And it would prevent the Center from safely transporting COVID positive migrants to quarantine locations. Instead, with the Center unable to take in any more migrants, Border Patrol would leave migrants—without ever testing them for COVID—at local McAllen bus stations, increasing the likelihood of COVID transmission in the community and leaving young women and children with no means of contacting transportation or procuring food and water.   

Concerned about the negative impact this order would have on the federal government’s operations, the Department of Justice filed a lawsuit on July 30, seeking to block enforcement of the order. On August 3, a federal judge in El Paso granted temporary relief, set to expire on August 13. On August 11, 2021, Becket filed a friend-of-the-court brief in the case, pointing out that the order impeded the religious rights of Catholic Charities contrary to federal and state law. After a court hearing on August 13, the district court issued an injunction that protects Catholic Charities Rio Grande Valley from Governor Abbott’s order while the case continues in court. The court recognized the vital role of religious ministries, finding “sufficient evidence” that federal officials must rely on the transportation efforts of “NGO-partners” like Catholic Charities “in order to operate the immigration system successfully.” 

As Becket’s friend-of-the-court brief explains, both state and federal law protect the free exercise of religion – including the exercise of religious ministries like the Humanitarian Respite Center. Not only did the order potentially increase the spread of COVID-19, but it also – in violation of state laws protecting religious exercise – threatened the Center if it carried out its religious mission of serving the vulnerable.  

The case is currently pending in the U.S. District Court for the Western District of Texas, El Paso Division. 

Gateway City Church v. Newsom

U.S. Supreme Court ended California’s draconian worship ban

On February 5, 2021, the U.S. Supreme Court invalidated California’s complete ban on indoor worship. Previously, California had the most severe restrictions in the nation when it came to in-person worship, banning indoor worship altogether while allowing secular businesses like Hollywood film studios and big-box retailers to open. In South Bay II, the Supreme Court recognized that California’s total ban on worship violated freedom of religion.

In response to the Supreme Court decision, the very next day California lifted its ban on indoor worship, allowing churches to open with indoor worship at 25% of capacity.

Santa Clara County goes against U.S. Supreme Court

Churches across the state have opened for indoor worship, allowing churchgoers to gather together with proven safety precautions. But Santa Clara County refuses to comply with the Supreme Court’s decisions in South Bay II and Diocese of Brooklyn. Instead, the County has ordered all churches to remain closed through Lent and Easter, preventing people from gathering to worship together as their faiths demand.

Diocese of San José, with Becket’s help, files to support houses of worship

On February 24, 2021, Becket filed a friend-of-the-court brief on behalf of the Diocese of San José at the United States Supreme Court. Banning indoor worship is unconstitutional—and the Supreme Court has said so several times, but they repeated the message again on February 27, 2021, forcing Santa Clara County to drop its ban on worship and allowing the Diocese of San José to reopen churches for Lent and Easter worship.

Importance to Religious Liberty: 

Religious communitiesMeeting together to worship is an important part of almost all religious or spiritual traditions worldwide. The government cannot discriminate against religious believers by violating their rights to gather together or by subjecting them to unfair restrictions that privilege other activities over the unalienable right to worship. 

 

Judge blocks Cuomo’s COVID restrictions—after he begs

WASHINGTON – A federal district court judge just issued an order blocking Governor Cuomo’s discriminatory limits on Orthodox Jewish synagogues permanently after Cuomo—in a peculiar move—asked the judge to rule against him and end the restrictions. The judge’s order applies to all of the houses of worship in red and orange “zones” in New York, and is one of the first in the country to block percentage-of-occupancy limits on worship attendance.

The decision comes after the Supreme Court found his 10- and 25-person caps on synagogues were discriminatory, other lower courts also ruled against him, and just days ago, a New York Times exposé revealed that nine top New York State health officials resigned after Cuomo told doctors to make up scientific justifications for his COVID lockdown orders. Cuomo’s retreat—which covered not only the 10- and 25-person caps but also the 25 percent and 33 percent occupancy limits—also came as he faced the prospect of Dr. Howard Zucker, New York’s commissioner of health, having to testify on the witness stand.

The judge’s decision to grant Cuomo’s request to end his own restrictions caps a series of unfortunate events for the Governor. In November, the Supreme Court ruled against his restrictions, saying, “even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.” The Justices also emphasized that “there is no evidence that the applicants have contributed to the spread of COVID-19,” and, to the contrary, that they “have admirable safety records.”

“It’s not every day you see a Governor beg a federal district court ‘Stop me before I discriminate again!’ but that is exactly what Governor Cuomo asked for,” said Eric Rassbach, vice president and senior counsel at Becket. “The Governor is desperately trying to avoid testimony showing that his orders shutting down synagogues and churches weren’t based on public health, but on politics. The court’s order is good news for the synagogues, churches, and other houses of worship of New York.”

Agudath Israel of America, a 98-year-old Orthodox Jewish umbrella group headquartered in New York City, succeeded in its first-ever lawsuit to go to the Supreme Court. Becket and law firm Troutman Pepper asked the Supreme Court for emergency protection on behalf of Agudath Israel and affiliated synagogues as part of an ongoing lawsuit against Governor Cuomo’s restrictions on their right to worship. The Catholic Diocese of Brooklyn brought a parallel case challenging the restrictions, and the cases were decided together by the Supreme Court.

When the case returned to the district court level, the New York Times reported that nine top health officials resigned after Cuomo allegedly announced major changes to pandemic policy without consulting with them first. After Cuomo’s press conferences, he apparently asked New York health officials to match their policy documents with his announcements. One of the major changes the health officials were reportedly blindsided by were rules related to the “cluster initiative” that shut down houses of worship throughout Brooklyn.

“We welcome Governor Cuomo’s surrender, even if it took him way too long to figure out he was acting illegally,” said Rassbach. “And we hope he learned something along the way. If he writes another COVID book, maybe he can give it the title I Did It My Way—And Boy Was I Wrong!

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Supreme Court nixes California’s ban on indoor worship

WASHINGTON – Late last night the Supreme Court issued an injunction stopping California’s extreme COVID-19 ban on indoor worship in churches, synagogues, and other houses of worshipThe Court ruled in two cases, South Bay United Pentecostal Church v. Newsom and Harvest Rock Church v. Newsom. Both churches sued California Governor Gavin Newsom, challenging the state’s total ban on indoor worship servicesthe most extreme in the nation—which targeted churches for closure while allowing non-essential retail stores such as Macy’s to open to hundreds of customersas well as hair salonsnail salons, and Hollywood soundstages.  

The Justices wrote several opinions in addition to the Court’s order. Justice Gorsuch, joined by Justices Thomas and Alito, cited Becket’s friend-of-the-court brief, pointing out that California was the only state in the country with a complete ban on indoor worship. Justice Gorsuch also stated that “California no longer asks its movie studios, malls, and manicurists to wait.” “As this crisis enters its second year—and hovers over a second Lent, a second Passover, and a second Ramadan—it is too late for the State to defend extreme measures with claims of temporary exigency, if it ever could. Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry. 

For his part, Chief Justice Roberts wrote that “the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.” He went on to state that the Constitution entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure, … but because they are. Deference, though broad, has its limits. 

California had no right to declare itself a religion-free zone,” said Eric Rassbach, vice president and senior counsel at Becket. When every other state in the country has figured out a way to both allow worship and protect the public health, maybe you are doing it wrong. We are glad this extreme violation of our first freedom has finally come to an end.” 

Previously, some states imposed numerical caps on indoor worship, regardless of the size of the house of worship, while allowing businesses to open to a percentage of their capacity. On the night before Thanksgiving 2020, the Supreme Court struck down New York Governor Cuomo’s 10- and 25-person caps on religious worship in Becket’s previous case, Agudath Israel of America v. Cuomo—the first successful challenge of COVID-19 policies that unconstitutionally prioritize secular behavior over religious exercise. The Supreme Court’s decision today found California’s policies in violation of precedent set in Agudath Israel and its companion case, Roman Catholic Diocese of Brooklyn v. Cuomo 

“When it comes to First Amendment rights, courts should not rubber-stamp public health restrictions,” added Rassbach. “That is especially so as we near the one-year anniversary of the lockdown orders. Instead courts should carefully balance the right to worship and public health. 

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby atmedia@becketlaw.orgor 202-349-7219.Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

South Bay United Pentecostal Church v. Newsom; Harvest Rock Church v. Newsom

The most extreme restrictions in the nation

Since March 4, 2020, houses of worship in California have been subject to a series of draconian restrictions that, with a few brief respites over the summer, have banned all indoor worship for months at a time. During this period, California permitted secular businesses—from Hollywood film studios to liquor stores and big-box retailers to nail salons—to remain open, some with percentage-of-occupancy caps and others with only distancing and masking requirements.

For months, non-essential retail, big-box, and department stores could open their doors to hundreds of mingling shoppers seeking retail therapy, but houses of worship couldn’t admit a single worshiper, even while following social distancing and masking requirements.

Fighting for the right to worship

In response to this disparate treatment, South Bay United Pentecostal Church sued Governor Gavin Newsom in May 2020, challenging this total ban on in-person worship. South Bay’s case went all the to the Supreme Court in an emergency posture, but initially resulted in a loss for the church with four Justices noting that they would have enjoined California’s restrictions.

Meanwhile, across the country, numerous states had been working cooperatively with religious organizations to find ways to conduct indoor religious worship services while still combating the COVID-19 pandemic. In fact, by late November of 2020, California stood alone in its absolute prohibition on indoor religious worship. Every other state permitted some form of indoor worship, with most states imposing no restrictions at all.

In November 2020, both Harvest Rock and South Bay brought renewed challenges to Governor Newsom’s restrictive orders, this time with a new arrow in their quiver: the Supreme Court had recently ruled, in Roman Catholic Diocese of Brooklyn v. Cuomo, that New York could not simultaneously allow “non-essential” retail stores to operate with percentage-of-occupancy caps (potentially opening their doors to hundreds of shoppers) while imposing 10- or 25-person hard caps on religious worship, regardless of the size of the religious worship space. Citing this recent decision, the Supreme Court sent Harvest Rock’s case back to the lower courts, telling the courts to reconsider their decisions upholding California’s complete ban on indoor worship.

When Harvest Rock went back before the U.S. Court of Appeals for the Ninth Circuit, Becket filed a friend-of-the-court brief explaining why the Supreme Court’s decision in Diocese of Brooklyn should control the outcome in this case. The right to worship, protected by the First Amendment, should not be treated less favorably than secular conduct like shopping at retail stores. Becket’s brief also explained that almost all states had moved from fixed, numerical caps on religious worship to percentage-of-occupancy caps that account for the size of the worship space. But the Ninth Circuit declined the Supreme Court’s invitation to reconsider its decision and again upheld California’s worst-in-the-nation treatment of religious worship. The churches therefore again sought relief from the Supreme Court.

Throwing open the doors of churches

On January 29, 2020, Becket filed a friend-of-the-court brief in support of South Bay and Harvest Rock at the Supreme Court. On February 5, 2021, the Supreme Court ruled that California could not enforce its discriminatory indoor worship ban against South Bay Pentecostal Church, Harvest Rock Church, and other houses of worship. As a result, California changed its unconstitutional worship restrictions the very next day.

 

Importance to Religious Liberty:

  • Religious Communities: Meeting together to worship is an important part of almost all religious or spiritual traditions worldwide. The government cannot discriminate against religious believers by violating their rights to assemble together or by subjecting them to unfair restrictions that privilege other activities over the unalienable right to worship.

Roman Catholic Archbishop of Washington v. Bowser

A beacon of hope in dark times 

The Catholics of the D.C. area have served others since 1794Just as it had during past crises, the Archdiocese of Washington rose to meet the challenges of the COVID-19 pandemic. In March, it voluntarily suspended worship services, but its charitable arm, Catholic Charities, worked ceaselessly, providing over 1 million meals as the crisis increased need, with a Catholic Charities in Columbia Heights now serving 650 people a week, up from the 40-person pre-pandemic weekly average. 

When the Archdiocese reopened churches in the summer, it instituted a series of stringent preventative measures to ensure its worship services were not virus spreading events. The Archdiocese’s plan – which was devised from the gold-standard recommendations of doctors at top universities and hospitals – was extremely effective, and although thousands of Masses have been celebrated since Catholic churches in the diocese have reopened their doors, they have not resulted in a single known COVID outbreak.  

No room for worshipers in the church?  

During the week of Thanksgiving, D.C. Mayor Muriel Bowser issued an executive order that lowered in-person attendance at church services to a hard cap of 50 people. When the new order went into effect on the day before Thanksgiving, it did not hamper the operations of restaurants, retail chains, public libraries, or many other establishments. However, it impacted the Archdiocese severely. Half of the Archdiocese’s churches in Washington, D.C., can accommodate 500 people, and the largest Catholic church in the United States, the Basilica of the National Shrine of the Immaculate Conception, is located in the District. These churches have more than enough room to hold hundreds of worshippers safely while following the social-distancing and disinfection protocols that have proven to be effective. And if the Basilica were a gym instead of a church, the executive order would allow it to bring in 600 people – but because it was a church, it is subjected to the same fifty-person cap that much smaller buildings were.  

However, when the Archdiocese repeatedly reached out to the Mayor to request a more reasonable regulation, it was rebuffed. With Christmas just around the corner, the Archdiocese brought the case to a federal court, in hopes of finding a more equitable treatment for the Archdiocese’s 655,000 parishioners in time for Christmas. In response to the litigation, the Mayor agreed to raise the cap for houses of worship to 250 people, and a federal judge later struck the arbitrary caps down, finding that they did not have “adequate consideration for constitutional rights.”

The Archdiocese of Washington is represented by Becket and Jones Day LLP 

Importance to Religious Liberty:

  • Individual freedomindividuals have the right to act in accordance to their religious convictions – and this includes the right to gather together and celebrate holy days and engage in communal worship and prayer without being singled out for unfair treatment or subjected to coercion by the government.  

Danville Christian Academy v. Beshear

Preserving public health while pursuing academic excellence  

Danville Christian Academy, located in Danville, Kentucky, is Christian educational institution serving students from preschool through grade 12. The mission of Danville Christian is “to mold Christ-like scholars, leaders, and servants who will advance the Kingdom of God.” In order to do so, Danville Christian believes that “its students should be educated with a Christian worldview in a communal, in-person environment.” 

In response to COVID-19, Danville Christian Academy has gone to great lengths to ensure the health and safety of students and families, as well as the broader community, by following the recommendations of local and national health officials. Over the summer, the school spent over $20,000 implementing safety procedures and equipping its facilities for safe, in-person instruction. As a result of Danville Christian’s rigorous efforts, since reopening in August, only a handful of students and staff have tested positive for COVID-19thus confirming that the school’s strict health and safety precautions have been working. 

Denying educational opportunities  

On November 18, 2020, eight months after the initial outbreak of COVID-19 in the United States, Kentucky Governor Andy Beshear issued two executive orders. The first required all elementary, middle, and high schools to cease in-person instruction and transition to virtual learningIn stark contrast, the second issued guidance permitting most other in-person activities and indoor gatherings to continue, with certain capacity restrictions. Those businesses permitted to remain open included daycares, preschools, colleges and universities, and even gyms, bowling alliestheaters, and gambling venues such as racetracks.  

As a result of this unequal treatment, retailers saw large Black Friday crowds and the University of Louisville has played football games in front of crowds numbering in the thousands. Meanwhile school-aged students, who are at a reduced risk of contracting and transmitting the COVID-19 virus, are kept from vital in-person instruction—despite the fact that all classes at Danville Christian would satisfy the same 25-person capacity restrictions imposed on certain other businesses. 

The result of the Governor’s unequal treatment of schools is even more troubling for private religious schools. The Governor’s actions deny religious communities the right to effectively pass down their faith to the next generation of believers. At Danville Christian, for instance, students are missing out on in-person chapel services, religious instruction, and other communal events that cannot be translated into an on-line format.  In July 2020, the Supreme Court emphasized the fundamental right of religious communities to pass on the faith to the next generation through religious education in its decision in Our Lady of Guadalupe v. Morrissey-Berru. The Court’s opinion specifically highlighted “the close connection that religious institutions draw between their central purpose and educating the young in the faith, the very interest raised here. 

Vindicating the right to religious education  

On November 202020, Danville Christian Academy filed a lawsuit against Governor Beshear, challenging his restrictions on religious education. The federal district court ruled in favor of Danville Christian, but Governor Beshear appealed to the U.S. Court of Appeals for the Sixth Circuit, which permitted enforcement of the Governor’s order.  

On November 30, 2020, Danville Christian Academy filed an emergency application with the Supreme Court to protect it from the Governor’s arbitrary closure of only primary and secondary schools, while permitting other larger group gatherings. Becket filed a friend-of-the-court brief in support of Danville Christian arguing that the Governor’s order must be subject to stringent judicial review because it interferes with the fundamental right of parents to direct the religious education of their children.

On December 17, 2020, the Supreme Court denied Danville Christian’s request for emergency relief, citing the “timing and impending expiration” of Kentucky’s school closing order. The Court’s opinion nevertheless noted the important First Amendment interests at stake, and highlighted the constitutionally protected parental rights raised in Becket’s brief.

Importance to Religious Liberty: 

  • Religious Communities: Religious groups have the right to form their own institutions and to pass their teachings down to the next generation. Schools like Danville Christian Academy, which exist to transmit the Christian faith to the next generation, are constitutionally protected from government restrictions that deny them their fundamental right to provide religious education.  

Cuomo’s discriminatory lockdown orders stopped by midnight order from Supreme Court

WASHINGTON – Just before midnight on the eve of Thanksgiving the Supreme Court stopped Governor Cuomo from imposing discriminatory 10- and 25-person caps on synagogues and churchesThe Court agreed that the Governor’s “rules can be viewed as targeting the ‘ultra-Orthodox [Jewish] community, and violate the First Amendment by treating religious exercise worse than secular activities. 

In its opinion the Supreme Court said that, “…even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.” The Justices also emphasized that “there is no evidence that the applicants have contributed to the spread of COVID-19, and, to the contrary, that they have admirable safety records.” Moreover, the Court explained that “there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” including tying maximum attendance to the size of a synagogue or church. 

Agudath Israel of America, a 98-year-old Orthodox Jewish umbrella group headquartered in New York City, succeeded in its first-ever lawsuit to go to the Supreme Court. Becket and Trouman Pepper asked the Supreme Court for emergency protection on behalf of Agudath Israel and affiliated synagogues as part of an ongoing lawsuit against Governor Cuomo’s restrictions on their right to worship – which were abruptly declared just 48 hours before a trio of sacred Jewish holidays, Hoshanah Rabbah, Shmini Atzeres, and Simchas Torah. The Catholic Diocese of Brooklyn brought a parallel case challenging the restrictions.  

Governor Cuomo should have known that openly targeting Jews for a special COVID crackdown was never going to be constitutional,” said Eric Rassbachvice president and senior counsel at Becket and counsel to the plaintiffs. “But treating synagogues and churches worse than the pet stores, liquor stores, and department stores also just didn’t make any sense, particularly when Agudath synagogues and Brooklyn parishes have carefully and responsibly followed the rules. The Supreme Court was right to step in and allow Jews and Catholics to worship as they have for centuries.”  

New York had tried to avoid a Supreme Court ruling by changing its classifications while the application was pending at the Supreme Court. But the Justices rejected that cat-and-mouse game, finding that houses of worship “remain under a constant threat” that the Governor would reclassify them and “there may not be time for applicants to seek and obtain relief from this Court before another Sabbath passes.” 

The dissenting justices argued that the Court did not need to decide the issue now because of New York’s recent rule change. Even these justices, however, emphasized the importance of protecting religious liberty during a pandemic. For example, Chief Justice Roberts noted that the restrictions “do seem unduly restrictive” and “may well … violate the Free Exercise Clause.” Justices Sotomayor and Kagan agreed that “Free religious exercise is one of our most treasured and jealously guarded constitutional rights” and that “States may not discriminate against religious worship” even in times of crisis. 

The injunctions issued by the Court will remain in place while the appeal continues at the Second Circuit and the Supreme Court. 

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby atmedia@becketlaw.orgor 202-349-7219.Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish. 

Agudath Israel of America v. Cuomo

Can Governor Cuomo target New York City’s Jewish communities?

Governor Cuomo openly singled out Jewish synagogues like Agudath Israel’s for disfavored treatment,  claiming  that “because of their [Orthodox Jews’] religious practices, etc., we’re seeing a spread [of COVID-19]” and threatened to “close the [Orthodox Jewish religious] institutions down.” Although Governor Cuomo openly admitted the supposedly elevated rates of COVID-19 would not be considered serious in many other states, he drew restrictive “Red” lockdown zones around predominately Orthodox Jewish parts of New York City. These zones heavily restricted worship, closed schools, and prevented Jewish families from celebrating holidays while mere blocks away, schools were open and restaurants were serving customers. Far from being scientifically justifiable, Cuomo himself has admitted that his drastic actions were taken out of a concern for public opinion, not public health, saying the lockdown zones were “a fear driven response” and admitting “this is not a policy being written by a scalpel, this is a policy being cut by a hatchet.” As a result, a Brooklyn federal judge found that “the Governor of New York made remarkably clear that this Order was intended to target [Orthodox Jewish] institutions.”

Standing up for equal treatment

In response to this unfair treatment, Agudath Israel filed a lawsuit in federal court on October 8, arguing that the discriminatory nature of Cuomo’s “cluster action initiative” rendered it unconstitutional. After the district court denied an immediate injunction, Agudath appealed to the Court of Appeals for the Second Circuit for an emergency ruling protecting them while the case was being argued in the lower court. On November 9, 2020, the Second Circuit declined, in a 2-1 decision, to stop the restrictions before the case was argued, with Judge Park dissenting. However, recognizing the importance of the case, the Court fast-tracked that briefing and argument in the case. 

On November 16, 2020, Becket, along with co-counsel Troutman Pepper Hamilton Sanders LLP, asked the Supreme Court to issue an emergency injunction halting Governor Cuomo’s discriminatory regulations until the case was decided. Pointing to Cuomo’s own admissions of targeting Orthodox Jews, the fact that the governor’s lockdown zones restricted Orthodox Jewish communities more harshly than other communities with equivalent or higher rates of COVID-19 infection, and the Supreme Court’s robust precedent protecting religious groups from hostile discrimination, Becket asked the Supreme Court to lift the governor’s restrictive “religious gerrymander” until the case was decided in court. On November 25, the Supreme Court granted the injunction, finding that Governor Cuomo’s “rules can be viewed as targeting the ‘ultra-Orthodox [Jewish] community,’” that there was no evidence that the houses of worship who brought the case had contributed to the spread of disease, and that the regulations violated the First Amendment by privileging secular activities over religious exercise.

The Court’s opinion made clear that “…even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

On December 28, 2020 the United States Court of Appeals for the Second Circuit ruled 3-0 in favor of Agudath Israel, halting Governor Cuomo’s 10- and 25-person caps on religious worship while the case is pending.

BREAKING: Foster moms react to historic Supreme Court hearing

WASHINGTON – Two foster mothers, Sharonell Fulton and Toni Simms-Busch, asked the Supreme Court today to protect their freedom to partner with Catholic ministry to care for foster children in need. During oral argument, the Justices appeared poised to protect the women and their ability to work with Catholic Social Services, which pioneered foster care in Philadelphia over 200 years ago.  

My faith has led me to become a foster mother to children that society had abused and discarded,” said foster mom and named plaintiff, Sharonell Fulton. “As a single woman of color, I’ve learned a thing or two about discrimination over the years—but I’ve never experienced the vindictive religious discrimination the City’s politicians have expressed toward my faith.” 

“I’m grateful the Justices took our arguments seriously and seemed to understand that foster parents like me just want to provide loving homes for children,” said Toni Simms-Busch, also a foster mom and named plaintiffIt does not help anyone for the City to shut down the best foster-care ministry in Philadelphia—particularly when we have loving homes ready for children in need.”  

ISharonell Fulton et. al. v. City of Philadelphia, the City of Philadelphia told Catholic Social Services that it had to either change its religious practices or close down, preventing kids from being placed with loving foster families. Becket Senior Counsel Lori Windham argued on behalf of Sharonell, Toni, and Catholic Social Servicestelling the Court that the First Amendment protects the right of religious organizations to serve those in need without giving up the religious beliefs that motivate their ministry. 

Religious organizations should be free to serve the public, regardless of their beliefs. The public square is big enough to accommodate everyone who wishes to do good – and that should be especially true when it comes to taking care of children in need,”said Lori Windhamsenior counsel at Becket and arguing attorney in Fulton. 

During oral argument, a majority of the Justices appeared inclined to protect the religious foster parents and Catholic Social Services:  

  • Justice Kavanaugh called the City’s position “absolutist and extreme,” noting that Philadelphia “created this clash,” even though no same-sex couple has ever come to Catholic Social Services for participation in this program.”  
  • Justice Breyer said what is “bothering me a lot” about the case is that “that no family has ever been turned down by this agencyindeed has never applied,” but the City still tried to shut them down. 
  • Justice Kagan pressed the City on the Free Exercise Clause, saying “I read Smith and Lukumi that you can’t get out of it so easily—that as long as there is an exemption, as long as it exists, as long as you could rely on it in the future, that there is not neutrality here. 
  • Justice Gorsuch expressed concern that the City could “effectively take over a service that had been provided privately for some time, and take it over so much so that it regulates it pervasively and this [Free Exercise] analysis shouldn’t apply at all.”  
  • Justice Alito said, “If we are honest about what’s really going on here, it’s not about ensuring that same-sex couples in Philadelphia have the opportunity to be foster parents. It’s the fact the City can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage. 
  • As the federal government’s attorney, Hashim Mooppan put it, “What the City has done is worse than cutting off its nose to spite its face. What it is doing is cutting off homes from the most vulnerable children in the city to spite the Catholic Church.” 

A decision from the Court is expected by the end of June. 

Becket will hold a press call today at 12:30 PM EST 
featuring Foster mom Toni Simms-Busch and Becket Fund senior counsel Lori Windham who will deliver remarks and answer questions about the case, respectively.  

Call-in information: 
301-715-8592 | Pin #: 914-1188-8332| or join https://zoom.us/j/91411888332
 Email questions in advance to media@becketlaw.org 

In a New York Minute: Cuomo caves to Jewish schoolgirls, loosens targeted lockdown order

WASHINGTON  Just hours after being ordered by a federal judge to explain his shutdown of Jewish schools in court, Governor Andrew Cuomo held a press conference in which he reversed course and agreed to allow the schools to open in Far Rockaway. The announcement came on the heels of the lawsuit filed by Yitzchok and Chana Lebovits, who send their daughters to Bais Yaakov Ateres Miriam (BYAM) – an Orthodox Jewish school for girls. The lawsuit alleged that Governor Cuomo and Mayor de Blasio had illegally discriminated against the school, even though there had been no cases of COVID and both officials had previously admitted that schools have not been spreading the virus. 

“We are grateful the lockdown order has been loosened and our children can get back to praying and learning together with their classmates,” said Chana Lebovits, mother of two Bais Yaakov students“The Governor should never have targeted the Jewish community with his lockdown or his statements.”  

It’s unfortunate it took a lawsuit to bring us to this point, but we are grateful the Governor has heard our plea and taken action to loosen the restrictions on Far Rockaway,” said Rabbi Nosson Neuman, menahel of Bais YakkovAt the end of the day, this is about the children, and getting our children and those of the entire community back into the classroom in a safe and legal way is the only goal.

In Lebovits v. Cuomowith help from Becket and the Jewish Coalition for Religious Liberty, Yitzchok and Chana asked the court to punish Governor Cuomo and Mayor de Blasio for their unscientific and discriminatory targeting of the Orthodox Jewish community that has caused immense suffering and pain for their neighbors and for their children who will never get back the weeks of instruction stripped from them at BYAM.  Among other things, the lawsuit emphasized a recording of a conversation Governor Cuomo had with a group of rabbis in which he acknowledged that the policy was not tailored, was cut by a “hatchet,” and was driven by fear. 

The Governor’s policy—announced October 6—was set to continue until at least November 5. Yet hours after being ordered to justify his actions in this lawsuitGovernor Cuomo reversed course. He announced today that he iloosening a lockdown order on Jewish communities in Far Rockaway imposed earlier this month after several groups within the targeted lockdown zones took him to court. In early October following rates of COVID cases that Governor Cuomo admitted “would be a safe zone” in many other states, the State imposed new indefinite lockdowns on a select number of zip codes in New York that target the Orthodox Jewish community.The new restrictions completely banned in-person instruction at BYAM and other schools in Jewish neighborhoods in New York City—stripping parents of their right to direct the religious education and upbringing of their children. 

The Governor shouldn’t have needed a lawsuit to tell him that shutting down Jewish schools was wrong. This was the worst kind of unscientific and harmful scapegoating, as the Governor himself knew that schools weren’t a problem,” said Mark Rienzi, President of Becket and counsel to the plaintiffs. If Governor Cuomo wants respect, he has to give respect. Reopening the schools in Far Rockaway is a start, but elected officials have a lot of work to do to repair the pain and division they have caused.”  

Beginning in March, BYAM voluntarily transitioned to remote learning to protect its neighbors and in compliance with the law. In the months that followed, the school spent thousands of dollars equipping teachers with the resources they needed to effectively teach over Zoom. Nevertheless, remote learning proved to be a poor substitute for in-person instruction. Students have suffered academically. Teachers have reported alarming regression in reading skills, had to reteach prayers, and are requesting last year’s math textbooks. Since reopening, BYAM has followed rigorous health and safety protocol, including masking, social distancing, and daily temperature checks—the result of which has been zero COVID cases in the school.  

Since its founding in 2012 BYAM has worked to instill the value and tradition of Orthodox Judaism in the next generation of women. Religious education is a centuries-old tradition that is indispensable to practicing the Jewish faith and passing it on to the next generation. Communal prayer, participating in bible studies and engaging in group projects designed to instill ethical values are all just some of the vital activities BYAM provides for its girls. The selective lockdown has cost the girls weeks of instruction they won’t be able to get back.  

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby atmedia@becketlaw.orgor 202-349-7219.Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish. 

Jewish schoolgirls take on Gov. Cuomo and Mayor de Blasio targeting of Jewish schools

WASHINGTON – Yitzchok and Chana Lebovits, who send their daughters to Bais Yaakov Ateres Miriam (BYAM) – an Orthodox Jewish school for girls– are taking New York’s Governor Andrew Cuomo and New York City’s Mayor Bill de Blasio to court today over new COVID restrictions intended to close religious schools in Orthodox Jewish communities. In Lebovits v. Cuomo, with help from Becket and the Jewish Coalition for Religious Liberty, Yitzchok and Chana are asking the court to end Cuomo’s unscientific and discriminatory targeting of the Orthodox Jewish community and allow their children to get back to the classroom.

On October 6, following an increase in COVID-19 cases that Governor Cuomo admitted “would be a safe zone” in many other states, the state imposed new indefinite lockdowns on a select number of zip codes in New York that target the Orthodox Jewish community. The new restrictions have completely banned in-person instruction at BYAM and other schools in Jewish neighborhoods in New York City—stripping parents of their right to direct the religious education and upbringing of their children. The restrictions come after months of Cuomo and de Blasio scapegoating the Jewish community for the spread of COVID while praising nearby mass protests. Last week, a federal judge in New York found the new restrictions to be specifically targeting the Orthodox Jewish community.

“We are devastated for our daughters and their classmates who are needlessly suffering because of the Governor’s policy,” said Chana Lebovits, mother of two Bais Yaakov students. “Governor Cuomo should not take away part of my daughters’ childhood because other people are afraid of Orthodox Jews. We hope the court will let our daughters go back to school so they can pray and learn together with their classmates.”

Beginning in March, BYAM voluntarily transitioned to remote learning to protect its neighbors and in compliance with the law. In the months that followed, the school spent thousands of dollars equipping teachers with the resources they needed to effectively teach over Zoom. Nevertheless, remote learning proved to be a poor substitute for in-person instruction. Students have suffered academically. Teachers have reported alarming regression in reading skills, had to reteach prayers, and are requesting last year’s math textbooks. Since reopening, BYAM has followed rigorous health and safety protocol, including masking, social distancing, and daily temperature checks—the result of which has been zero COVID cases in the school.

Since its founding in 2012 BYAM has worked to instill the value and tradition of Orthodox Judaism in the next generation of women. Religious education is a centuries-old tradition that is indispensable to practicing the Jewish faith and passing it on to the next generation. Communal prayer, participating in bible studies and engaging in group projects designed to instill ethical values are all just some of the vital activities BYAM provides for its girls. These opportunities simply can’t be fulfilled through telelearning and the new lockdown orders threaten the vitality of BYAM’s traditions and the religious messages they convey in the lives of the girls that attend.

“There is no place for bigotry in the Big Apple,” said Mark Rienzi, president and senior counsel at Becket. “By Cuomo’s own admission, schools are not significant spreaders of COVID-19, and the new policy was not driven by science but was made from ‘fear’—fear of Orthodox Jews. Cuomo and de Blasio need to follow the science, follow the law, and stop scapegoating Jews. The Mayor and the Governor should be ashamed.”

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Lebovits v. Cuomo

A long-standing Jewish tradition 

Opened in 2012, Bais Yaakov Ateres Miriam is an Orthodox Jewish girls’ school in Far Rockaway, New York City, that stands in a long tradition of Jewish schools founded to teach young women about their faith. The first Bais Yaakov school was founded in 1917 in Poland, to provide an alternative to secular education that did not support and educate young Jewish women on the history and traditions of their faith. Today, BYAM celebrates Jewish holidays, holds communal prayers, and engages in group projects and exegetical debates—activities that are central to the traditions of Orthodox Judaism.  

Yitzchok and Chana Lebovits moved to their current home precisely because they wanted to give their girls a great Jewish education at BYAM. But without the opportunity to embrace their unique cultural, linguistic and religious heritage—teaching and learning that can only properly be done in-person—the Lebovits girls and other young Jewish girls are deprived of an irreplaceable opportunity to learn and live out their faith. Yitzchok and Chana are being hindered in passing on their Jewish beliefs and practices on to their daughters.  

In March, BYAM voluntarily transitioned to remote learning to protect their neighbors and in compliance with the law. In the months that followed the school spent thousands of dollars equipping the entire school with Wi-Fi, purchasing additional laptops and tablets for teachers to use while offering remote instruction, and to pay for transportation for teachers who would normally use buses to get to school. Nevertheless, remote learning proved to be a poor substitute for in-person instruction. As the state began to reopen over the summer, BYAM looked forward to opening safely, responsibly and cooperatively.  

And it did just that. In the first month of school, BYAM handed out hundreds of masks and implemented many safety and hygiene protocols to ensure the safety of students and community members, including social distancing and daily temperature checks. The happy result of those comprehensive efforts has been zero cases of COVID-19 in the school. BYAM has thus become a safe haven for girls to gather and learn about their religious heritage.   

Cuomo and de Blasio crack down on Jews 

Unfortunately, the Orthodox Jewish community in New York City has been singled out by the government as the scapegoats for COVID-19 spread since the beginning of the pandemic. In April of 2020, Mayor de Blasio dispersed a Jewish funeral and then threatened them with law enforcement. During the subsequent summer – while Governor Cuomo and Mayor de Blasio praised nearby mass protests, Jewish families were ousted from Brooklyn parks by the New York Police Department acting at the behest of the Mayor  

But, despite doing everything right, BYAM has been caught in New York Governor Andrew Cuomo’s crusade against Orthodox Jewish neighborhoods in Brooklyn. After months of scapegoating Jews for coronavirus infections in New York City, in late September/early October 2020 Cuomo and de Blasio announced a plan to target “microclusters” of COVID-infections in New York City by locking down Jewish neighborhoods and schools. On October 6 – just before three important Jewish holy days – Governor Cuomo issued an executive order that shut impending Jewish celebrations down, claiming that mildly elevated rates of positive coronavirus tests justified extraordinary emergency powers, while at the same time admitting that those elevated rates “would be a safe zone” in many other states.  

Remarkably, by Cuomo’s own admission, schools are not significant spreaders of COVID-19, and the new policy was not driven by science but was made from fear. 

Protecting the fundamental right of religious education

Remote learning has taken a serious toll on the educational opportunities for the Lebovits girls and other BYAM students. Teachers have reported alarming regression in reading skills, had to reteach prayers, and are requesting last year’s math textbooks. In many cases, students have tested a full year below grade level in both Hebrew and English reading.  

The government’s attempt to close BYAM is a direct threat to the future of the Jewish faith tradition that Bais Yaakov schools have been teaching for over a hundred years. By putting Jewish religious education on hold indefinitely, Governor Cuomo and Mayor de Blasio weren’t just halting educational growth, they were stifling the religious exercise of Jewish families, and depriving the Lebovits girls of part of their childhood. 

Becket and the Jewish Coalition for Religious Liberty represented the Lebovits family and BYAM in the federal District Court for the Northern District of New York, where the school asked the court to protect BYAM from future bigotry and to hold Cuomo and de Blasio accountable for violating their First Amendment rights. Shortly after Becket filed the lawsuit, Cuomo reversed his policy and allowed Bais Yaakov Ateres Miriam and other schools in its Far Rockaway neighborhood to open. The case was settled out of court.  

Importance to Religious Liberty:

  • Religious CommunitiesReligious groups have the right to form their own institutions and to pass their teachings down to the next generation. Schools like BYAM, which help preserve the Jewish faith and instill Jewish values in the next generation, are constitutionally protected from government restrictions that single them out for unfair treatment.  

Capitol Hill Baptist Church v. Bowser

Protecting the health and safety of our communities

Since March 2020, Americans have made great sacrifices to contain the COVID-19 pandemic. One of the most significant sacrifices has been the suspension of in-person worship. Across the country, churches like Capitol Hill Baptist Church voluntarily took necessary steps to protect the health and safety of their congregations and communities.

Since March, Americans have learned much about the virus and how to prevent its spread. In response, 42 states across the country have correctly loosened restrictions on in-person worship, allowing churches to responsibly resume their free exercise of faith, and imposing no capacity limit on outdoor services as long as worshipers wear masks and practice proper social distancing.

Religious worship held to a double standard

In March, Washington D.C., like so many other cities, imposed restrictions on public worship for the sake of public health. But, six months later, D.C. stands as an outlier amongst states and localities across the country because it continues to restrict in-person worship to no more than 100 people even if services are held outside and masking and proper social distancing are employed.

Meanwhile, the District has been a hotbed for protest, including gatherings of thousands (and even tens of thousands) of citizens to protest the death of George Floyd and advocate for racial justice. Mayor Muriel Bowser has not only encouraged, but participated in these protests, all the while keeping in place restrictions on in-person worship.

Capitol Hill Baptist Church’s religious convictions put weekly in-person gatherings of the entire congregation for worship front-and-center. For this faith community, virtual worship is not an option. Capitol Hill Baptist Church takes no issue with the demonstrators or their right to freely protest—in fact many congregation members have participated in peaceful, religious demonstrations—it simply asks that its First Amendment rights be similarly respected.

Even-handed application of the Constitution

In June 2020, Capitol Hill Baptist Church applied for a waiver from the City’s restrictive policy against large gatherings, with the intention of holding outdoor services with appropriate safety precautions. In September, the church reapplied for the waiver. In September 2020 the City denied the church’s application.

On September 22, 2020 Capitol Hill Baptist Church filed a lawsuit against Mayor Bowser asking that its constitutional right to freely exercise its faith be respected in same way as the protestors’ right to freedom of speech. On October 6, 2020 Becket filed a friend-of-the-court brief in support of Capitol Hill Baptist Church, arguing that the City must provide a compelling reason to maintain its 100-person limit on outdoor, masked, and socially distanced religious gatherings even though it’s a national outlier, and even though the restrictions are not being applied evenly. A federal district court ruled in the church’s favor on October 9, 2020, allowing the church to gather for worship in a safe, socially-distanced outdoor setting.

Importance to Religious Liberty:

  • Religious CommunitiesThe First Amendment’s Free Exercise clause protects religious Americans from undue burdens on their religious exercise. When churches are given a special disability not felt by non-religious entities, the government is violating the Free Exercise Clause by burdening religious practice.

Wisconsin officials have a change of heart after Catholic Church stands up for religious rights

WASHINGTON –The Public Health Department for the City of Madison and Dane County, Wisconsin put out a new “Forward Dane” order today, removing a 50-person cap on in-person religious services that did not apply to any similar secular activities. The new order came after the Roman Catholic Diocese of Madison stood up for its right to free exercise of religion. Global law firms Sidley Austin and Troutman Sanders, along with the Becket Fund for Religious Liberty sent a letter to Dane County Executive Joe Parisi, Madison Mayor Satya Rhodes-Conway, and Public Health Director Janel Heinrich on Wednesday, June 3. The letter explained that Madison/Dane County’s arbitrary 50-person cap on houses of worship violated the First Amendment as well as the Wisconsin Constitution. Because the Diocese stood up for its rights, Catholic churches in Madison/Dane County will now conduct in-person Masses at the same 25 percent capacity level as secular activities such as malls and theaters, but with even more rigorous social distancing and hygiene protocols.

Under Madison/Dane County’s previous order, shopping malls, bars, restaurants, spas, gyms, salons, museums, movie theaters, community centers, bowling alleys, skating rinks, and trampoline parks were allowed to open at 25 percent capacity, while houses of worship were subject to an arbitrary 50-person cap regardless of how large the church building was. This meant that in some cases, Catholic churches in Madison were held to less than five percent capacity. Madison’s mayor also announced that public protests were not subject to government restrictions at all. The legal letter sent on Wednesday explained that capping in-person worship at just 50 people was discriminatory and targeted the Catholic Church for selective enforcement.

“We are pleased that the County and the City have ended the unequal 50-person cap on religious gatherings. As bishop, it is my duty to ensure that Sunday Mass be available as widely as possible to the Catholic faithful, while following best practices when it comes to public health,” said Bishop Donald Hying, Roman Catholic Diocese of Madison. “Indeed, in a time of deep division, it is more important than ever for the Church to provide solace and comfort to all, in the great tradition of American religious freedom. We look forward to working together with the County and City to continue the reopening process in a safe, cooperative, and responsible manner.”

After Madison-Dane County officials released the first “Forward Dane” executive order on May 18 which listed houses of worship as “essential services” thus allowing them to resume in-person services at 25 percent capacity, the Diocese of Madison quickly put together a plan for safely reopening with rigorous social distancing and hygiene protocols developed in accordance with CDC and WHO guidelines. But after the Diocese announced its careful plan, the City of Madison/Dane County abruptly reversed course, adding a brand-new restriction on houses of worship, limiting them to just 50 people at each religious service regardless of the size of the building. Following its May 22 order, the Madison/Dane County Health Department multiple times called and visited Diocesan officials and parishes to inform them that surveillance officials would be sent to churches and fines of up to $1000 would be imposed for every instance in which more than 50 people were gathered for Mass.

“We’re glad that Madison and Dane County came to their senses, but it shouldn’t have taken so long,” said Eric Rassbach, vice president and senior counsel at Becket. “The First Amendment protects both prayer and protest. Putting an arbitrary numerical cap on worship services while allowing thousands to protest makes no sense from a legal or public health perspective. Most other governments nationwide have already lifted their COVID-related restrictions on worship. The few remaining holdouts should take note and come into compliance with the First Amendment.”

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Wisconsin Churches Reopen

Houses of Worship are Essential

The Catholic Diocese of Madison has been committed to preserving the health and safety of its community members throughout the coronavirus pandemic, voluntarily suspending public masses before it was mandated by the state and generally cooperating with the directives of the local and state health officials from the beginning. They have not neglected their Christian duty either, heroically springing into action to provide remote schooling, care for the sick and dying in Catholic hospitals, and continue serving the hungry, uninsured and incarcerated.

On May 18, 2020, Madison/Dane County officials put out an order listing houses of worship as “essential services” and thus allowing them to resume holding in-person services at 25 percent capacity. The Diocese of Madison got straight to work to put together a plan for safely reopening with appropriate social distancing and hygiene protocol.

Dashed expectations

But just when members of the Catholic community thought that they would finally receive the spiritual solace and healing they’d been craving, Madison/Dane County pulled the rug out from under the Diocese. After the Diocese published its safe reopening plan, on May 22, 2020, Madison/Dane County put out a new order capping in-person worship services at 50 people. This new order meant that some Catholic churches in Madison would be limited to less than five percent capacity, while shopping malls, bars, restaurants, spas, gyms, salons, museums, movie theaters, community centers, bowling alleys, skating rinks, trampoline parks and more were free to open at 25 percent capacity.

Following the May 22 order, the Madison/Dane County Health Department contacted Diocesan officials and parishes to inform them that overseers would be sent to churches and fines of up to $1000 would be imposed for every instance in which more than 50 people were gathered for Mass.

Constitutional consequences

On June 3, 2020, Becket, Sidley Austin LLP, and Troutman Sanders LLP sent a letter to County Executive Parisi and Mayor Rhodes-Conway explaining that the 50-person cap is unconstitutional and illegal. On June 5, 2020 Mayor Rhodes-Conway and County Executive Parisi released a new “Forward Dane” executive order returning houses of worship to equal footing with secular services at 25 percent capacity for in-person worship services.

Importance to Religious Liberty:

  • Religious communitiesThe First Amendment’s Free Exercise clause protects religious Americans from undue burdens on their religious exercise. When churches are given a special disability not felt by secular entities, the government is violating the Free Exercise Clause by burdening religious practice.

Catholic Diocese of Madison, Wisconsin demands equal treatment from county and city officials

WASHINGTON –Global law firms Sidley Austin and Troutman Sanders, along with the Becket Fund for Religious Liberty, sent a letter today to Dane County Executive Joe Parisi and Mayor Satya Rhodes-Conway on behalf of the Roman Catholic Diocese of Madison explaining that the City and County’s May 22 public health order that capped in-person worship at just 50 people is discriminatory and targets the Catholic Church for selective enforcement. Under the order, shopping malls, bars, restaurants, spas, gyms, salons, museums, movie theaters, community centers, bowling alleys, skating rinks, trampoline parks and more are not subject to the 50-person cap. Madison’s mayor has also announced that public protests are not subject to government restrictions at all. Madison/Dane County threatened to send government officials to Catholic Masses to find out how many people are there and impose $1000 fines if too many people came to church. The letter explains that Madison/Dane County’s actions violate the First Amendment and the Wisconsin Constitution.

After Madison/Dane County officials released the “Forward Dane” executive order on May 18 which listed houses of worship as “essential services” thus allowing them to resume in-person services at 25 percent capacity, the Diocese of Madison quickly put together a plan for safely reopening with rigorous social distancing and hygiene protocols developed in accordance with CDC and WHO guidelines. But after the Diocese announced its careful plan, in an abrupt and inexplicable reversal, the City of Madison/Dane County added a brand-new restriction on houses of worship, limiting them to just 50 people at each religious service regardless of the size of the building. This means that some churches are held to while trampoline parks, movie theaters and virtually all other entities can operate to at least 25%.

“In the wake of the coronavirus pandemic and the racial injustice of the past week, our community is crying out for unity, for grace and for spiritual healing. We are ready and able to answer that call, but the 50-person cap has unjustly stifled our pastoral mission,” said Bishop Donald Hying, Roman Catholic Diocese of Madison. “Our Diocese has been, and remains, committed to promoting and protecting the health and safety of our fellow Madisonians, but the county and city have wrongly subordinated the spiritual needs of the community to the operations of non-essential businesses.”

Since May 22, the Madison/Dane County Health Department has multiple times called and visited Diocesan officials and parishes to inform them that surveillance teams would be sent to churches and fines of up to $1000 would be imposed for every instance in which more than 50 people were gathered for Mass.

“Madison and Dane County think mass protests, movies and malls are just fine, but churches have to be put under surveillance to make sure not too many people go,” said Eric Rassbach, vice president and senior counsel at Becket. “If it’s safe enough for thousands to shop together at malls, and to sit in a theatre for a two-hour film, it’s safe enough to spend 45 minutes safely socially distanced in worship. Madison and Dane County should end their unequal treatment of religious people.”

For more information or to arrange an interview with a Becket attorney, contact Ryan Colby at media@becketlaw.org or 202-349-7219. Interviews can be arranged in English, Chinese, French, German, Portuguese, Russian, and Spanish.

Minnesota Churches’ Challenge to COVID-19 Executive Order


Leaders in protecting public health  

Throughout the coronavirus pandemic, the Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota have been leaders in protecting public health. They voluntarily suspended in-person services to prevent the spread of COVID-19 well before statewide stay-at-home orders came into effect. Since then, these faith communities have been ministering to their communities any way they can—serving meals to the homeless, donating medical supplies, accompanying the elderly, and raising money for those in need.

Aware of the deep spiritual, mental, and emotional loss that comes from being deprived of in-person worship, on May 7 the churches presented Governor Walz with proposed protocols for resuming in-person worship services in line with the recommendations of the World Health Organization and United States Centers for Disease Control and Prevention. On May 13, Governor Walz issued an executive order allowing retailers to open their doors to fifty percent capacity, businesses—from pet-grooming services to medical cannabis operations—to resume in-person work, and even announced a phased plan for reopening bars and restaurants. In-person worship, however, remained banned beyond ten people. No guidance or plans for reopening were announced.

This meant that while the Mall of America could open its doors to those seeking retail therapy, houses of worship were barred from providing spiritual healing to their congregations.

Retail therapy, but no spiritual healing

The Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota remain committed to mitigating the risk of spreading coronavirus in their congregations and communities by instituting rigorous social distancing and hygiene protocols to prevent the spread of coronavirus. But, if the state deems the risk low enough to reopen non-essential businesses, why should religious communities be forced to comply with a ten-person limit?

Acting in defense of religious liberty

After weeks of negotiation between the churches and the governor to try to achieve equal treatment for churches and houses of worship, on May 20, Becket sent a letter to Governor Walz on behalf of the Minnesota Catholic Conference and The Lutheran Church—Missouri Synod in Minnesota explaining that continuing this discriminatory treatment of in-person worship violates federal and state law.

The letter announced that on May 26, 2020, in advance of Pentecost Sunday (May 31), the faith communities would resume holding in-person worship services and ministering to their congregations at one-third capacity whether or not Governor Walz amended his executive order. Governor Walz returned to the negotiating table after the Churches acted in defense of their free exerciseannouncing on May 23 that he would clear the way for houses of worship of all faith traditions to open to larger groups starting May 27, 2020. 

Importance to Religious Liberty:

  • Religious communitiesThe First Amendment’s Free Exercise clause protects religious Americans from undue burdens on their religious exercise. When Churches are given a special disability not felt by secular entities, the government is violating the Free Exercise Clause by substantially burdening religious practice.