Judge Lifts Attendance Restrictions for DC Churches

In time for the holiest day on the church calendar, a federal injunction means that the Roman Catholic Archbishop of Washington can welcome as many worshippers as other pandemic-minded guidelines will allow.

A parishioner makes an offering after outdoor mass at St. Agnes, a Catholic church in San Diego, California, during the Covid-19 pandemic. (Courthouse News photo/Barbara Leonard)

WASHINGTON (CN) — Capable of fitting the Statue of Liberty under its dome, but more commonly fitting around 3,000 parishioners, the Basilica of the Shrine of the Immaculate Conception had been set to mark Easter Sunday next week with mass for 250.

U.S. District Judge Trevor McFadden intervened late Thursday night, awarding an injunction to the Catholic Archdiocese of Washington that oversees the Basilica and 38 other churches in the district restricted to 250-person caps and 25% limit on church services since Christmas.

In a 40-page opinion, McFadden emphasized that Washington’s Covid-19 restrictions were not only unconstitutional but also made the district an outlier. The Trump appointee says 37 states don’t have any caps on attendance in houses of worship, and the remaining have percentage limits. Washington was the only state or district to have a numerical cap. 

What’s more, he noted, the restrictions applied only to churches, not businesses, a contradiction that the U.S. Supreme Court found unconstitutional with New York’s worshiper attendance caps in November. McFadden said that though the district’s restrictions aren’t as strict as New York’s were, they still discriminated against houses of worship. 

“The Archdiocese’s churches must stop admitting parishioners once they become a quarter full, but Whole Foods or Target can take in as many customers as they wish while complying with social-distancing requirements,” McFadden wrote. “The District’s 25 percent and 250-person restrictions would not apply to its churches if they hawked wares instead of proclaimed the Gospel.”

Himself a Protestant, McFadden’s religious background came up at his Senate confirmation hearing, where Rhode Island Democrat Sheldon Whitehouse noted that the judge and his family attend services at the Falls Church Anglican, a church near Washington that broke from the Episcopal Church in part because the larger church had installed a gay bishop.

McFadden assured Whitehouse at the time that as a judge he would respect the Supreme Court’s decision in Obergefell v. Hodges, which legalized gay marriage across the country.

Last fall, McFadden also presided over a challenge to pandemic-capacity limits by the Capitol Hill Baptist Church. He awarded an injunction in that case as well.

The Catholic Church brought its challenge two weeks before Christmas when the district was enforcing an even stricter 50-person capacity limit. Mayor Muriel Bowser’s offer to quadruple the in-person cap led the archdiocese to withdraw its emergency motion, and the case has been in limbo since then. 

In her order to increase the limit, Bowser wrote: “A recent lawsuit appears to insist on a constitutional right to hold indoor worship services of even a thousand persons or more at the largest facilities, which flies in the face of all scientific and medical advice and will doubtlessly put parishioners in harm’s way.”

The archdiocese renewed its challenge when Bowser would not bend in time for the Holy Week that begins this weekend with Palm Sunday. A capacity limit of 250 people leaves the Basilica of the National Shrine at 8% capacity. 

Back in December, the archdiocese noted that it requires 6 feet of space between families plus masks, and has curtailed singing. 

“Since mass resumed in June, the Archdiocese has demonstrated that people can worship God in a safe, responsible and cooperative way,” the original complaint said.

McFadden specifies in the injunction order that the district cannot require “the archdiocese to turn away individuals that it could admit while adhering to all the district’s and its own other pandemic-related limitations.”

“In the end, part of the free exercise of religion that the First Amendment protects is a church’s ability to exercise it in the manner it sincerely believes its religion compels,” McFadden’s opinion states. 

Mayor Bowser did not respond to a request for comment. 

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