In re Covid-Related Restrictions On Religious Servs.

Docket NumberC. A. N23C-01-123 MAA
Decision Date28 August 2023
CourtSuperior Court of Delaware



C. A. No. N23C-01-123 MAA

Superior Court of Delaware

August 28, 2023

Submitted: May 31, 2023

Upon Defendant Governor John Carney's Motion to Dismiss: GRANTED.

Stephen J. Neuberger, Esquire (Argued), and Thomas S. Neuberger, Esquire, of THE NEUBERGER FIRM, P.A., Wilmington, Delaware, Thomas C. Crumplar, Esquire, of JACOBS &CRUMPLAR, P.A., Wilmington, Delaware, Scott D. Cousins, Esquire, of COUSINS LAW LLC, Wilmington, Delaware and Martin D. Haverly, Esquire, of MARTIN D. HAVERLY, ATTORNEY AT LAW, Wilmington, Delaware, Attorneys for Plaintiffs.

Andrew D. Cordo, Esquire (Argued), Daniyal M. Iqbal, Esquire, and Nora M. Crawford, Esquire, of WILSON SONSINI GOODRICH &ROSATI, P.C., Wilmington, Delaware, Attorneys for Defendant.


Meghan A. Adams, Judge.



Over three and a half years ago, on January 7, 2020, public health officials in China identified a novel coronavirus which was causing an outbreak of atypical pneumonia in the city of Wuhan.[1] Shortly thereafter, this virus was identified as the SARS CoV-2 virus.[2] "COVID-19" was the official name given for the outbreak of this coronavirus.[3] On March 11, 2020, the World Health Organization declared that the spread of COVID-19 was a pandemic.[4] In March 2020, the COVID-19 virus began rapidly spreading across the U.S.[5]

This case centers around several restrictions (the "Challenged Restrictions" or "Restrictions") that the Governor of Delaware, John C. Carney, Jr. (the "Governor"), put in place between March through May 2020 to mitigate the spread of COVID-19. The two Plaintiffs, who are church pastors, originally filed their complaint in the Court of Chancery and transferred the complaint to this Court after it was dismissed for lack of subject matter jurisdiction. Plaintiffs claim the Challenged Restrictions violated their rights pursuant to the First Amendment to the United States


Constitution and Article I, Section 1 of the Delaware Constitution. Plaintiffs also claim the Restrictions violated their right to equal protection pursuant to the Fourteenth Amendment to the U.S. Constitution. Before the Court is Defendant's motion to dismiss the complaint. For the reasons that follow, Defendant's motion is GRANTED.


I. The State of Emergency

On March 11, 2020, the World Health Organization declared that the COVID-19 outbreak had caused a global pandemic.[6] On March 13, 2020, the Governor issued a "Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat" (the "Emergency Declaration" or "Declaration").[7] The Emergency Declaration advised event hosts to "cancel all 'non-essential mass gatherings' of 100 people or more" and recommended that "those at highest risk (over age 60 and with chronic health conditions) not attend large gatherings."[8] The Declaration advised that if any large gathering took place, that individuals should take certain precautions to reduce the spread of the virus. Aside from guidance specific to schools, and senior living and care facilities, the Declaration did not


prescribe specific rules for businesses or gatherings of fewer than one hundred people.[9]

II. The Governor's Authority Pursuant to the Emergency Management Act

The Governor's authority to declare this state of emergency was derived from the Emergency Management Act.[10] Pursuant to 20 Del. C. § 3115(a), the Governor is "responsible for addressing the dangers to life, health, environment, property or public peace within the State presented by emergencies or disasters ...."[11] Section 3115(c) grants the Governor the power to proclaim a state of emergency. It provides:

In addition to the powers conferred upon the Governor by this chapter, a state of emergency may be proclaimed by emergency order of the Governor upon a finding that an emergency or disaster has occurred or that such occurrence or threat of that occurrence is imminent. The state of emergency shall continue until the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with to the extent that conditions necessitating a state of emergency no longer exist and terminates the state of emergency by subsequent order. No state of emergency can continue for more than 30 days without being renewed by the Governor.[12]

"[T]he Governor may issue, amend and rescind all necessary executive orders, emergency orders, proclamations and regulations, which shall have the force and effect of law."[13] The Act further provides that the Governor may "[t]ake such other


actions as the Governor reasonably believes necessary to help maintain life, health, property or public peace."[14]

As the rate of infection and death toll caused by the pandemic increased over the next several weeks, the Governor issued a series of modifications to the Emergency Declaration which are summarized herein.[15]

III. The Challenged Restrictions

Between March 22 and June 2, 2020, the Governor issued several emergency orders and restrictions to limit the spread of COVID-19. The Challenged Restrictions limited the number of attendees and restricted the activities in houses of worship ("Houses of Worship").

A. The Fourth Modification

On March 22, 2020, the Fourth Modification set restrictions specific to "Essential Businesses," which included Houses of Worship.[16] This modification stated that Essential Businesses were "subject to the requirements of existing emergency orders[] ...." which included the Second Modification to the Emergency


Declaration. [17] The Second Modification mandated that "organizers and sponsors of public gatherings of 50 or more people shall cancel the gatherings immediately and not reschedule them until after May 15, 2020, or the public health threat of COVID-19 has been eliminated."[18] The Fourth Modification included a list of mandates and restrictions, titled "Responsibilities of Essential Businesses," which included adherence to the guidance set forth on social distancing, cleaning, and sanitizing.[19]The Fourth Modification stated that it had "the force and effect of law," and that "[a]ny failure to comply with [its] provisions . . . constitutes a criminal offense."[20]

B. The Ninth Modification

On April 1, 2020, the Ninth Modification limited in-person gatherings to ten people "until after May 15, 2020 or the public health threat of COVID-19 has been eliminated."[21] The Ninth Modification included an exception for "gatherings of employees engaged in work at [E]ssential [B]usinesses[,]" but specified that the requirements for hand hygiene and social distancing remained in effect.[22] By the


terms of the Ninth Modification, Essential Businesses could allow no more than twenty percent of stated fire occupancy requirements in the building at one time and no more than ten percent during exclusive hours for high-risk populations.[23]

C. The Tenth Modification

On April 6, 2020, the Governor issued the Tenth Modification to the Declaration.[24] This modification ordered that Houses of Worship "comply with all social distancing requirements set forth in the COVID-19 State of Emergency declaration and all modifications, including attendance of no more than 10 people for in-person services under any circumstances."[25] Out of the 237 categories of Essential Businesses that the State of Delaware identified, only Houses of Worship were subject to this ten person restriction.[26] Other organizations deemed Essential Businesses were only subject to the twenty percent restriction within the same industry subsector.[27]


D. The Eighteenth Modification

On May 18, 2020, the Eighteenth Modification provided that Houses of Worship could either hold: (1) "in-person services and gatherings of 10 or fewer people"; or (2) "in-person services and gatherings" of up to 30% capacity only if all attendees could observe CDC social distancing guidelines.[28] These modifications included four pages of restrictions on the operation of Houses of Worship.[29] These restrictions included prohibiting: communion, baptism, worship over 60 minutes, preachers without masks, and service on 6 out of 7 days each week.[30] Although the Governor banned the touching requirement for baptisms, he issued no such restrictions on Jewish circumcisions.[31]

E. The Bullock Action and the Nineteenth Modification

On May 19, 2020, Reverend Dr. Christopher Alan Bullock ("Bullock") filed a lawsuit against the Governor in the United States District Court for the District of


Delaware ("the District Court").[32] Bullock sought injunctive relief, including a temporary restraining order ("TRO").[33]

On May 22, 2020, the Governor issued the Nineteenth Modification which eliminated the "Essential" versus "Non-essential" categorization of businesses and replaced it with industry-specific guidance found in the Delaware Phase 1 Reopening Plan.[34] Under this Modification, Houses of Worship could operate at 30% of their permitted fire occupancy.[35]

On May 28, 2020, the District Court denied Bullock's request for a TRO noting that the relief Bullock requested was actually more restrictive than the current Reopening Worship Guidance and because he had not established a threat of "irreparable harm" required to grant a TRO.[36] The United States Court of Appeals for the Third Circuit affirmed the denial of the TRO.[37]


F. The Twentieth and Twenty-First Modifications

On May 31, 2020, the Governor issued the Twentieth Modification.[38] This Modification eliminated the restrictions in the Eighteenth Modification with respect to Houses of Worship and provided that the thirty percent capacity limit remained in effect, as it did for other Essential Businesses.[39] There have been no restrictions issued for Houses of Worship since the Twentieth Modification. Plaintiffs concede that, as of...

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