Late Friday night, Oct. 9, Judge Trevor N. McFadden issued a memorandum opinion in Capitol Hill Baptist Church v. Bowser, et al granting the church’s motion for injunctive relief. This opinion from the U.S. District Court for the District of Columbia is a victory for both religious liberty and public health because it clarifies the government’s responsibility to honor these fundamental rights during the pandemic.
At the end of September, the Capitol Hill Baptist Church (CHBC) in Washington, D.C., filed a lawsuit in the U.S. District Court for the District of Columbia seeking relief from D.C. Mayor Muriel Bowser’s current order regarding places of worship. The congregation is working to find a way to legally and safely gather outdoors for services in Washington during the ongoing pandemic. For more on the case, see this explainer.
It should be noted that the church has taken the public health precautions seriously. For months, meeting outside in Virginia, the church has followed all relevant public health guidance of wearing masks and keeping six feet distance between households during the service. CHBC, like the vast majority of churches throughout the nation, recognize the perils of this pandemic and honor the God-ordained responsibility of mayors and governors and federal officials to protect people from a dangerous virus.
Highlights from the court’s opinion
At this point in the church’s litigation, the court has heard oral arguments from both sides, reviewed the statement of interest submitted by the United States Department of Justice, and the various amicus briefs submitted by interested parties. The Friday night ruling granted the church a preliminary injunction which forbids the Mayor from prohibiting CHBC from conducting outdoor worship services in the District of Columbia with the precautions of masks and social-distancing. The preliminary injunction is in force until the case goes to a full trial, which could take longer than the pandemic will last, thus making the conflict moot. At this point, the District has 30 days to appeal the decision.
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.” (quote from court ruling)
The following are highlights from Judge McFadden’s opinion, beginning with his explanation of the merits behind this religious liberty victory:
“The Court determines that the Church is likely to succeed in proving that the District’s actions violate RFRA. The District’s current restrictions substantially burden the Church’s exercise of religion. More, the District has failed to offer evidence at this stage showing that it has a compelling interest in preventing the Church from meeting outdoors with appropriate precautions, or that this prohibition is the least-restrictive means to achieve its interest. The Court will therefore grant the Church’s motion for injunctive relief.”
To understand the church’s argument under the Religious Freedom Restoration Act (RFRA), this section from the court’s opinion is helpful.
RFRA provides that the government may not “substantially burden” a person’s exercise of religion, “even if the burden results from a rule of general applicability.” “The only exception recognized by the statute requires the government to satisfy the compelling interest test,” that is, “to demonstrate that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (citations omitted)
For its case under RFRA, the church needed to prove that the District’s regulations constitute a “substantial burden” on its exercise of religion. CHBC argued that its conviction to meet as an entire congregation in one gathering was burdened by the Mayor’s limit of 100 people. For more detail on that argument, see our explainer on the case when it was filed.
While the District did not dispute the sincerity of CHBC’s religious convictions for gathering in person, they argued that the church could meet by other methods, “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as others in the District have done this year. The court responded to the District’s argument.
“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 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.”
Once the church proved a “substantial burden” on its religious exercise, the onus then moved to the District to prove its order achieves their public health purpose through the “least restrictive means” possible. Judge McFadden noted that RFRA requires more from the District than its generalized public health interests to maintain such a restriction against CHBC’s request. On whether or not the District’s actions meet that higher standard outlined in RFRA, Judge McFadden writes:
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.
The evidence cutting against the District’s arguments are the government’s actions in support of the mass protests during the summer. Judge McFadden discussed how these First Amendment protected gatherings have been treated differently.
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).
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.
Judge McFadden also discussed the significant work CHBC’s leaders did before filing suit to amicably resolve this conflict with Mayor Bowser and the District. The church sought resolution with the District multiple times over the course of months, as the Court opinion notes.
The Court likewise rejects the District’s argument that the Church cannot show irreparable harm because of its delay in seeking injunctive relief. The District contends that the Church waited “more than six months after the first Mayor’s Order restricting mass gatherings” to sue. But as the District admits, the Church was not twiddling its thumbs during that period—it “discussed with the District alternatives to full- congregation meetings” and “twice sought administrative relief in the form of an exemption from the Mayor’s Orders.” This is the sort of behavior that courts ordinarily encourage— indeed, sometimes require, . . . The Church will not now be punished for seeking an amicable resolution before rushing to the courthouse.
Judge McFadden concludes his opinion on this particular case in a way that also offers an overview of our country’s current situation.
The Church has consistently represented that it will take appropriate precautions such as holding services outdoors, providing for social distancing, and requiring masks. As explained, the District has not put forward sufficient evidence showing that prohibiting a gathering with these precautions is necessary to protect the public.
The COVID-19 pandemic has undoubtedly presented unique challenges to governments, which are tasked with balancing the public safety and religious freedom. The Court acknowledges the difficult decisions facing the Mayor here. But Congress set rules for this sort of balancing when it enacted RFRA.
The Church has shown that it is likely to succeed in proving that the District’s actions impose a substantial burden on its exercise of religion. For its part, the District has not shown that it is likely to prove a compelling interest in prohibiting the Church from holding outdoor worship services with appropriate precautions, or that its restrictions are the least restrictive means available to achieve its public health objectives.
This federal opinion echoes the argument ERLC President Russell Moore has made often during the COVID-19 crisis. Responding to a Supreme Court decision on California’s pandemic order, Moore said, “This pandemic is a perilous time. We need to emerge from it with both our public safety and our First Amendment intact. We can do that, but only if elected officials and the courts take seriously the matters both of public health and of constitutional freedoms.”
Thankfully, this preliminary injunction allows Capitol Hill Baptist Church and the District of Columbia to take both seriously.