Capitol Hill Baptist Church v. Bowser, Case No. 20-cv-02710 (TNM)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: TREVOR N. McFADDEN, United States District Judge
• Citation: 496 F.Supp.3d 284
• Parties: CAPITOL HILL BAPTIST CHURCH, Plaintiff, v. Muriel BOWSER, in her official capacity as Mayor of the District of Columbia, District of Columbia, Defendants.
• Decision Date: 09 October 2020
• Docket Number: Case No. 20-cv-02710 (TNM)

496 F.Supp.3d 284

CAPITOL HILL BAPTIST CHURCH, Plaintiff,
v.
Muriel BOWSER, in her official capacity as Mayor of the District of Columbia, District of Columbia, Defendants.

Case No. 20-cv-02710 (TNM)

United States District Court, District of Columbia.

Signed October 9, 2020

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Andrew R. Miller, Matthew T. Martens, Kevin Gallagher, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Kevin Ryan Palmer, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, for Plaintiff.

Conrad Z. Risher, Gavin Noyes Palmer, Pamela A. Disney, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

TREVOR N. McFADDEN, United States District Judge

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Capitol Hill Baptist Church ("the Church") has opened its doors for a weekly worship service for 142 years—until now. Its doors closed in March, on Mayor Muriel Bowser's COVID-19-related orders. At first, the Church accepted these restrictions willingly. But as the months passed by and the Mayor lifted other restrictions and welcomed mass protests to the city, the Church sought permission to hold its weekly service outdoors, with congregants masked and socially distanced. The District denied permission because the Church's doctrinal requirement of a weekly gathering of its entire congregation together conflicts with the Mayor's prohibition on religious gatherings of more than 100 people, indoors or out.

The Church sues the Mayor and the District of Columbia (collectively, the "District"), arguing that their actions violate, among other laws, the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb. Before the Court is the Church's motion for an expedited preliminary injunction. It seeks to enjoin the District from enforcing its restrictions insofar as they prevent the Church from holding socially-distanced outdoor worship services in which congregants wear masks.

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.

I.

The Church first met on Capitol Hill in 1878. Mem. in Supp. of Pl.’s Mot. For Prelim. Inj. ("Pl.’s Mot.") at 7, ECF No. 3-1.¹ And except for a three-week hiatus during the peak of the Spanish flu in 1918, its members have continued to gather weekly, in person, ever since. Id. Although the Church started with 31 members, id. , today it has 853—most of whom live in the city, Decl. of Jaime Dunlop ("Dunlop Decl.") at 1–2, ECF No. 5. Prior to the onset of COVID-19, around 1,000 people attended the Church's Sunday services. Id. at 1. Unlike many other religious entities, the Church "does not offer virtual worship services, it does not utilize a multi-site model, and it does not offer multiple Sunday morning worship services." Id. at 2. To the Church, "a weekly in-person worship gathering of the entire congregation is a religious conviction for which there is no substitute." Pl.’s Mot. at 7.

The Church, like similar entities, has not escaped the effects of the COVID-19 pandemic. It halted its regular services in March 2020, when Mayor Bowser declared a public-health emergency. Dunlop Decl. at 2; Defs.’ Opp. to Pl.’s Mot. for Prelim. Inj. ("Defs.’ Opp.") at 15, ECF No. 15. The District, like state and local governments around the country, has imposed restrictions in response to COVID-19. Shortly after declaring a state of emergency, see Decl. of Matthew T. Martens ("Martens Decl.") Ex. 5 ("Mayor's Order 2020-045"), ECF No. 4-5; Martens Decl. Ex. 6, ECF

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No. 4-6 ("Mayor's Order 2020-046"), the District prohibited "large gatherings"—defined to include events with ten or more persons in an indoor or outdoor space, Martens Decl. Ex. 7 ("Mayor's Order 2020-053") at 4, 8, ECF No. 4-7; Defs.’ Opp. at 17.

On May 27, the District began Phase One of a four-phase reopening plan, in which gatherings of more than ten people were prohibited. Martens Decl. Ex. 11 ("Mayor's Order 2020-067") at 3–4, ECF No. 4-11; Defs’ Opp. at 18. Phase Two began on June 22 and remains in effect. Martens Decl. Ex. 16 ("Mayor's Order 2020-075") at 3, ECF No. 4-16; Pl.’s Mot. at 15; Defs.’ Opp. at 19.² In this phase, restaurants may have up to 50 percent capacity indoors, but have no limit on the number of patrons that they may seat outdoors. Mayor's Order 2020-075 at 5–6. The restrictions on gatherings loosened, permitting gatherings of up to 50 people. Id. at 3. "Places of worship are encouraged to continue providing virtual services"; if they meet in person, they may "operate with expanded capacity limits"— the fewer of 50 percent capacity or 100 persons. Id. at 7; Martens Decl. Ex. 22 ("Phase Two Guidance for Places of Worship") at 2, ECF No. 4-22. These limits are the same whether the gathering takes place indoors or outside. Phase Two Guidance for Places of Worship at 2.

Those who "knowingly violate[ ]" the District's restrictions "may be subject to civil and administrative penalties authorized by law, including sanctions or penalties for violating D.C. Code § 7-2307, including civil fines or summary suspension or revocation of licenses." Mayor's Order 2020-075 at 12; see also D.C. Code § 7-2307 (allowing the Mayor to, among other things, "provide for a fine of not more than $1,000 for each violation" of emergency executive orders). It is unclear when the District plans to move to Phase Three—which would, according to the ReOpen DC Advisory Group's recommendation, limit houses of worship to 250 congregants, Martens Decl. Ex. 28 at 2, 20, ECF No. 4-28. Limits on the number of congregants would cease in Phase Four, which will be triggered by a vaccine or other widely-administrable cure. Id. at 20, 25.

Amid COVID-19's arrival and the District's associated restrictions, a wave of protests swept the country beginning in late spring, and Washington, D.C. saw gatherings by the thousands. Pl.’s Mot. at 17–20. The Church argues that the District has treated mass protests more favorably than religious services by not enforcing its capacity restrictions on gatherings against protestors. Id. at 20. Specifically, it contends that the District has supported these large gatherings as evidenced by, among other things, Mayor Bowser's attendance at a protest on June 6, 2020. See, e.g. , id. at 17–20.³ The District disputes its control over mass protests on federal land; it also maintains that religious services pose a greater risk of infection than protests, and that no spike in COVID-19 cases or deaths

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resulted from these large gatherings. Hr'g Tr. at 43–44.

Around the same time as some of these protests, the Church petitioned the District for a waiver so that it could resume meeting as an entire congregation. Dunlop Decl. Ex. 5 ("June Request") at 2, ECF No. 5-5. While some D.C. congregations have voluntarily cancelled their services or moved to virtual platforms, see, e.g. , Defs.’ Opp. at 20–21, the Church explained that, "[b]ased on [its] theological convictions, [its] ability to meet together in person as a church is of the essence of what it means to be a church," and that "if a church cannot meet in an assembly it does not exist," June Request at 2. The Church requested that the District allow it "to meet outdoors in a responsible, socially distanced manner"—meaning that it would provide for six-foot distancing between households and require attendees to wear masks. Id. at 2–3.

When it did not receive an answer from the District, the Church re-applied for a waiver on September 1. Dunlop Decl. Ex. 6 ("September Request"), ECF No. 5-6. It informed the District that it had begun holding services weekly in Virginia, where outdoor services were permitted, but explained that "this has been a substantial burden on our congregation, most of whom live in the District of Columbia" and "many of whom do not own vehicles." Id. at 2. The Church renewed its request to meet outdoors with similar precautions in place.

The District denied the Church's waiver request on September 15. Dunlop Decl. Ex. 7, ECF No. 5-7. The denial reiterated that current restrictions limited the Church to the fewer of 50 percent capacity or 100 persons—whether indoor or outdoor—and that "[w]aivers for places of worship above that expanded capacity are not being granted at this time." Id. at 2. Shortly after that denial, the Church sued the District.

Along with its complaint, the Church filed a motion for a temporary restraining order, Pl.’s Mot. for TRO, ECF No. 3, which the Court converted without objection into a motion for an expedited preliminary injunction, Min. Order (Sept. 24, 2020). The Church seeks relief from the District's enforcement of its restrictions, which, as they currently stand, prevent it from physically gathering as one congregation. Pl.’s Compl. at 25, ECF No. 1. The...