The Department of Justice on May 29 filed a statement of interest in Colorado federal court “supporting the First Amendment religious freedom claims” of High Plains Harvest Church in Ault and its pastor, a former Navy SEAL and disabled veteran, according to a DOJ press release.
Because Colorado appears to be treating similarly situated non-religious activity, such as in-person dining restaurants “better than places of worship,” the U.S. explains that those actions could constitute a violation of the church’s constitutional right to free exercise of religion, according to the release.
The complaint submitted by pastor Mark Hotaling and the church against Gov. Jared Polis and Jill Ryan, Executive Director of the Colorado Department of Public Health and Environment, states that today throughout “Colorado it is perfectly legal for hundreds of shoppers to pack themselves cheek by jowl into a Lowes.
“But if 50 people meet to worship God in a small rural church, they do so at the risk of being fined and imprisoned,” the complaint introduction states.
“Plaintiffs feel as though they have stepped through the looking glass into a world where the right to shop for gardening supplies and home improvement materials is protected by the Constitution, while meeting as a body to worship God corporately has been relegated to the category of unnecessary or even superfluous.”
The complaint quotes U.S. Attorney General William Barr in a statement from April 14 about the DOJ opposing discrimination against religious activity: “Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings.”
The complaint cites the Free Exercise Clause of the First Amendment, which prohibits the state from abridging rights to free exercise of religion. “The State lacks a compelling, legitimate or rational interest in the Orders’ application of different standards for churches and faith-based gatherings than those applicable to exempted businesses and other non-religious entities,” the complaint states.
The statement of interest from the DOJ came as part of an initiative began in April by Barr. In the April 27 initiative, Eric Dreiband, assistant attorney general for civil rights, and Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, were directed to review local and state policies to ensure civil liberties are protected in the current pandemic.
The complaint states the plaintiffs called the court to aid them and vindicate religious liberties under the First Amendment, and to “remedy the surreal state of affairs in which they inexplicably find themselves.”
“Especially during a crisis like this, the ability of people of faith to be able to exercise their religion is essential,” Dreiband said in a statement. “Colorado has offered no good reason for not trusting congregants who promise to use care in worship the same way it trusts diners inside a restaurant, or accountants, realtors or lawyers to do the same.”
“Each of HPHC’s members would have standing to assert claims for breach of their constitutional rights as set forth herein,” according to the complaint. “The interest HPHC seeks to protect, especially the interest in the free exercise of religion, is germane to HPHC’s purpose.” The church is seeking a declaration, injunction and “other prospective relief.”
“We appreciate the challenging position that the state and the governor face in trying to balance public safety with personal and religious freedoms,” said Jason Dunn, U.S. Attorney for the District of Colorado. “But when government restrictions cross the line into unconstitutional violations of religious liberty, it is my duty and that of the Department of Justice to engage and protect those interests.”
The complaint notes that under the “Safer at Home” public health orders recently enacted by Polis, all public and private gatherings are limited to 10 persons — except those listed as “Necessary Activities.” While there is no numerical limit for the number of persons who may be present when a necessary activity is conducted, religious services “are not considered” such activities under the health order.
Further, the health orders list several critical businesses which are not considered necessary activities, these include gas stations, mining operations of oil and gas extraction, banks, law offices, accounting offices, funeral homes, gun stores, airlines, marijuana dispensaries, grocery stores and more, according to the complaint.
Dreiband said the DOJ will take action if states and localities “infringe on the free exercise of religion or other civil liberties.”
Schneider said regardless of whether a pandemic is present or not, “unlawful discrimination” of people exercising their right to religion is a violation of the First Amendment. “As important as it is that we stay safe during these challenging times, it is also important for states to remember that we do not abandon all of our freedoms in times of emergency.”
Previously, Ryan issued a guide for places of worship to be used under the executive order, which states that religious gatherings are permitted only if the gatherings consist of 10 people or fewer.
According to the complaint, Hotaling went to a local store and attempted to find parking in a mostly full lot.
“The Orders have the effect of prohibiting a gathering of 50 worshipers in HPHC’s sanctuary — even if all of those worshipers observe social distancing requirements — while at the very same time allowing hundreds of people in the Lowes down the road,” the complaint states.
Guidance for restaurants “expressly” provides indoor dine-in service can be held at 50% capacity of the code limit with a maximum of 50 patrons, according to the release. This is applicable as long as parties of eight or fewer follow social distancing, masks are worn and further precautions are met.
However, “rules for religious services in a place of worship are significantly more restrictive,” the release states. CDPHE guidance on religious gatherings in a place of worship “are permitted only ‘if physical distancing is observed and the gatherings are of 10 or fewer people in each room.”
“Places of worship thus are not allowed to host more than ten worshippers, even if they socially distance, and whether or not they are in the same party — unlike various businesses, including marijuana dispensaries, legal, accounting and real estate services,” the release states. Many of those businesses may admit numbers of customers to a single space — provided they socially distance.
This in turn is unlike restaurants, “which have been exempted from the public gathering limits and now may seat 50 customers, who may sit in parties where the members of the party are not socially distanced.”
“It is a substantial burden on the religious exercise of HPHC and its members, including Hotaling, if they cannot meet for in-person corporate worship as a body of believers,” the complaint states, and the church wants to begin holding in-person services again.
In all services, Hotaling and the church will follow CDC guidelines for faith communities, according to the complaint.
The complaint also cites a biblical command which orders Christians “not to forsake the gathering together of believers,” and that this “in-person corporate worship” is fundamental to Christian practice tenants for approximately 2,000 years. “HPHC and its members, including Hotaling, have a sincerely held religious belief that the physical corporate gathering of believers is a central element of religious worship commanded by the Lord.”
— Avery Martinez