Federal judge: Colorado’s anti-coronavirus rules can’t single out churches

CNA Staff, Oct 22, 2020 / 10:56 pm (CNA).- A federal judge has said Colorado officials may not enforce anti-coronavirus limits against two churches, saying that the state rules lack sufficient exemptions for the free exercise of religion.

The regulations treat churches more strictly than similar gatherings, which are required to observe social distancing but not observe occupational limits as well, the judge said, adding that the rules fail to protect congregations that may wish to remove facial coverings for religious reasons.

“With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic,” U.S. District Court Judge Daniel Domenico said in his Oct. 15 order. “Colorado’s failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment’s guarantee of the free exercise of religion.”

The judge’s order exempts the two churches from mask requirements and occupancy limits that they believe bar their religious practice. However, they still must follow sanitation requirements, maintain social distancing, and prohibit shaking hands. The temporary injunction is in place while the case is heard in court.

“(T)he Constitution does not allow the State to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant’s or spa’s,” Domenico said.

The plaintiffs are two Protestant pastors and their Denver-area churches: Bob Enyart of Denver Bible Church in Wheat Ridge and Joey Rhoads of Community Baptist Church in Brighton. In August they filed a complaint against federal and state officials charging that the state health orders were vague and infringed on religious freedom.

“The lawsuit calls both the federal government and Colorado leaders into account for their violations of the right to free exercise of religion, among other abuses of power, primarily resulting from Governor Jared Polis’ COVID-19 related executive orders,” said Thomas More Society special counsel Rebecca Messall, who with co-counsel Brad Bergford represented the complainants.

The plaintiffs did not demonstrate a likelihood of success on most of their claims, but their First Amendment free exercise claim against state officials will likely succeed, the judge said. State officials may not enforce executive orders or public health orders against the plaintiffs “to the extent those orders treat houses of worship differently from comparable secular institutions.”

Officials may not enforce additional numerical occupancy requirements against the two churches, nor enforce the “requirement that congregants wear face masks at all times during worship services,” said Domenico.

The State of Colorado has filed an appeal.

“Absent some sort of bad faith, a law that is otherwise neutral and generally applicable does not suddenly become unconstitutional simply because it contains limited exceptions for certain secular activities but not religious activities,” said the motion from the office of the Colorado attorney general.

“Nothing in the state defendants’ public health orders reveals discrimination or bigotry targeted at religion,” the motion continued. “If anything, Colorado’s orders treat religious organizations more favorably than comparable organizations that are nonreligious.”

The state's motion argued that Domenico took scientific evidence out of context, the Denver Post reports.

Enyart, one of the pastors, appeared skeptical of the coronavirus response.

“It’s like ‘The Boy Who Cried Wolf’,” he told CBS4 News before the judge issued the order. “If it was a true emergency, people would be inclined to ignore government orders because of government’s overreach. There’s so much evidence coming out that the lockdown is hurting people.”

Enyart, who also hosts a radio show, has sometimes been a controversial figure. He has vocally criticized and even conducted protests of other Christian groups, pro-life groups and politicians he believes to be insufficiently opposed to abortion.

According to the pastors' complaint, compliance with state rules, executive orders and public health rules violates the plaintiffs' “sincerely held religious beliefs.” The rules “substantially burden” free exercise of religion.

The rules “restrict or prevent religious speech and the expression of personal communication in how closely plaintiff pastors can be to persons in their congregations, and in how closely congregants can be to each other, to meet, pray, talk, stand, sit, walk, sing, pray, embrace, shake hands, smile or facially express their thoughts, opinions and emotions verbally and through facial expression.”

“Moreover, plaintiffs are restricted in holding baptisms, communion services, marriage ceremonies and laying of hands,” the complaint continued. It said the two churches conduct religious services and fellowship activities for congregations larger than 50 people. The capacity limits on houses of worship are “more severe” than those that apply to similar settings, it said.

“The state also allows a variety of exceptions to its facial-covering requirement where it recognizes that removing a mask is necessary to carry out a particular activity,” said the complaint.

Domenico said the court does not doubt the good faith decisions of state officials' efforts “to balance the benefits of more public interaction against the added risk that inheres in it.”

While the Constitution “doesn't kneecap a state's pandemic response,” he said, “the existence of a crisis does not mean that the inalienable rights recognized in the Constitution become unenforceable.”

Although the religious must comply with neutral, generally applicable restrictions, he said, “the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship’s religious exercise.”

Most Colorado outbreaks have taken place at workplaces, schools and businesses, not churches, Domenico said, citing state data. The largest outbreaks have been at colleges and prisons. Less than 2% of the 900 active or resolved outbreaks in Colorado have taken place at religious facilities.

Other religious groups' challenges to Colorado limits on public gatherings have not prevailed in court.

In September, U.S. District Judge Christine M. Arguello rejected the Colorado Springs-area Andrew Wommack Ministries' challenge to coronavirus limits, saying public health was at risk. Health officials said a novel coronavirus outbreak at a July Bible conference hosted by the organization led to 63 cases and one death, Colorado Public Radio said.