Cardinal Gregory calls suit ‘last resort’ to protect religious rights

Patricia Burkhardt rehearses prior to Mass at St. Gabriel Catholic Church in Washington July 11, 2020. (CNS photo/Tyler Orsburn)

By Mark Zimmermann, Catholic News Service

WASHINGTON — In a Dec. 22 op-ed column in The Washington Post, Cardinal Wilton D. Gregory of Washington said the archdiocese’s recent lawsuit against District of Columbia’s COVID-19 restrictions on houses of worship was a “last resort” to “protect the free exercise of religion in the nation’s capital.”

In an executive order issued Dec. 16, in response to a lawsuit filed five days earlier by the Archdiocese of Washington, Mayor Muriel Bowser modified her earlier limits to 25% of capacity and no more than 250 people. The earlier cap was 50 people.

“We appreciate that our local officials have had to make difficult decisions in the face of unprecedented challenges,” Cardinal Gregory wrote. “But praying apart is not the same as praying together.”

He noted the lawsuit was filed “as we could no longer bear the burden of turning away the faithful from Mass due to D.C.’s 50-person cap on religious services when big-box stores, retailers and even liquor stores and many other venues continued to operate without similar limits.”

Cardinal Gregory added, “The right of the faithful to assemble for religious services is one of our most cherished constitutional legacies, and we maintain it should be treated as an ‘essential activity’ — just as D.C. regards shopping and so many other activities as essential.”

The cardinal also expressed hope that as local authorities craft policies aimed at ensuring the health and safety of their communities during the pandemic, that they also recognize that “the public welfare is served when people of faith gather to worship, pray and receive spiritual nourishment — particularly in times of crisis.”

Bowser’s new order became effective at 12:01 a.m. Dec. 17 and will be in effect through Dec. 31. It replaced a Nov. 23 order that had set a 50-person cap on gatherings in houses of worship in the District of Columbia.

The Archdiocese of Washington in a statement Dec. 17 acknowledged Bowser’s latest action, saying: “We are grateful that the new order will allow us to welcome more of the faithful to church during the Christmas season and beyond.”

“We are continuing to evaluate the impact of these new rules, and it may still be necessary for the court to weigh in on the proper balance between public safety and the fundamental right to worship,” it said. “As always, we welcome continued dialogue with the mayor’s office to ensure that current and future restrictions are fairly applied and do not unduly burden the free exercise of religion.”

The archdiocese filed its lawsuit Dec. 11 with the U.S. District Court for the District of Columbia.

The suit contended that Bowser’s restrictions of Nov. 23 violated the Religious Freedom Restoration Act, the First Amendment’s Free Exercise Clause, and the First Amendment’s guarantees of freedom of speech, assembly, and association.

It claimed the District’s hard cap on religious services singled out religious groups for more restrictive COVID-19 limitations on public gatherings compared to those placed on businesses and other venues in the city.

The suit requested the court “issue temporary, preliminary and permanent injunctive relief prohibiting defendants from enforcing their unlawful policies against plaintiff’s religious beliefs and activities.”

Father Daniel Carson, the vicar general and moderator of the Curia for the Archdiocese of Washington, said in a Dec. 14 interview with the Catholic Standard, the archdiocesan newspaper, that through the lawsuit the archdiocese was seeking to have the District remove the cap and “implement a percentage (limit), based upon capacity of the worship space of the building.”

The priest noted that surrounding Maryland jurisdictions responding to the COVID-19 pandemic have currently implemented limitations on attendance at worship services based on a percentage of the seating capacity of the building, with the limit now being 50% in Southern Maryland and up to 25% in both Prince George’s and Montgomery counties.

Also, the Archdiocese of Washington Dec. 14 filed a temporary restraining order seeking to have the District Court remove the 50-person cap on church attendance in the District in advance of Christmas.

Bowser’s new executive order effectively addressed this concern ahead of Christmas. It specified that “houses of worship may admit no more than 25% of their capacity as specified in their certificate of occupancy for the room or area where worship services will be held, or 250 persons, whichever is fewer. This total limit includes all persons: worshippers, clergy and staff.”

The order said houses of worship in the District of Columbia must continue to adhere to guidance from the D.C. Department of Health, including having “a reservation system or some means ensuring that there will not be crowding inside or outside the facility.”

The order also noted safety protocols must include mandatory masking, plans for ingress and egress of worshippers, and that household members attending together may sit as a group, and each group must be seated at least 6 feet apart from other individuals or groups.

Those safety protocols have been in effect at Catholic churches in the Archdiocese of Washington since public Masses resumed after Memorial Day. Local Catholic churches have blocked off alternating pews and required masking and social distancing.

Bowser’s updated order also addressed concerns raised in the archdiocese’s lawsuit that her Nov. 23 order had set much stricter limits on attendance at D.C. houses of worship compared to crowd limits for businesses and other venues.

Her Dec. 16 order said it “ensures parity in terms of capacity limits — both as a percentage and a cap in attendance — among more activities,” setting that 25% occupancy rate and maximum of 250 people also for “restaurants, fields, gyms and other recreational facilities, guided tours, libraries, real estate and construction, retail food sellers and other essential and nonessential businesses.”

It also underscored the seriousness of the COVID-19 pandemic, noting “the District of Columbia, like the rest of the country, is currently confronting the worst surge of coronavirus cases yet,” and pointed out the District’s number of COVID-19 cases has “multiplied nearly eight-fold since early July.”

“The District’s overall number of positive cases totals 25,602, and 720 District residents have lost their lives to the virus already,” it said.

During the pandemic, “large gatherings remain discouraged,” Bowser said in the order, and she added: “The vast majority of houses of worship have accommodated their congregations’ spiritual needs through televised or Web-based services, individual counseling, small sacramental services and online giving. Such practices continue to be encouraged.”

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