Federal Court Accepts Church’s Challenge to D.C.’s 100-Person Limit on Outdoor Religious Services
In yesterday’s Capitol Hill Baptist Church v. Bowser, Judge Trevor McFadden (D.D.C.) granted a preliminary injunction allowing the church to hold a large outdoor, masked, socially-distanced worship service in D.C. Judge McFadden applied the federal Religious Freedom Restoration Act, which generally requires the government to grant religious exemptions from generally applicable laws when (1) the law “substantially burdens” religious practice and (2) the government can’t show that denying the exemption is the least restrictive means to a compelling government interest. (The federal RFRA covers the D.C. government as well as other parts of the federal government.)
Here is the core of the court’s analysis as to the strict scrutiny analysis (element 2 noted above):
Under RFRA, the District must prove a compelling interest in banning the specific religious practice at issue: Gathering for religious worship outdoors while wearing masks and socially distancing. As the Sixth Circuit recently explained when enjoining similar restrictions based on Kentucky’s RFRA statute: “The likelihood-of-success inquiry instead turns on whether [the] orders were ‘the least restrictive means’ of achieving these public health interests. That’s a difficult hill to climb, and it was never meant to be anything less.”
The District cannot rely on its generalized interests in protecting public health or combating the COVID-19 pandemic, critical though they may be. Rather, RFRA requires the District to “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” The District has failed to meet its burden at this stage, as it presented little to no evidence that it has a compelling interest in applying its restrictions to ban the type of services that the Church wishes to hold. And some of the scant evidence that does appear in the record cuts against the District’s arguments.
Consider the District’s response to mass protests over the past year, which included thousands of citizens marching through the streets of the city, including along streets that the District closed specifically for that purpose. And the Mayor appeared at one of the mass gatherings, “welcom[ing]” hundreds if not thousands of protestors tightly packed into Black Lives Matter Plaza and announcing that it was “so wonderful to see everybody peacefully protesting, wearing [their] mask[s].” Indeed, Mayor Bowser christened “Black Lives Matter Plaza” when “she directed the D.C. Department of Public Works to create a mural on 16th Street N.W., near the White House, to ‘honor the peaceful protesters from June 1, 2020 and send a message that District streets are a safe space for peaceful protestors.'”
No matter how the protests were organized and planned, the District’s (and in particular, Mayor Bowser’s) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church’s outdoor services. The Mayor’s apparent encouragement of these protests also implies that the District favors some gatherings (protests) over others (religious services).
When faced with similar facts in a First Amendment challenge, another court explained that high-profile government officials encouraging and participating in protests “sent a clear message that mass protests are deserving of preferential treatment.” Soos v. Cuomo (N.D.N.Y. June 26, 2020). The court noted that the officials—Governor Cuomo and Mayor de Blasio—could have “been silent” or “could have just as easily discouraged protests, short of condemning their message, in the name of public health.” So too here. Mayor Bowser, like Mayor de Blasio, is a high-level government official with “clear enforcement power.” Her actions speak volumes.
The District attempts to distinguish the risks posed by mass “protest marches” from those posed b
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