D.C. Church Wins Religious Liberty Claim For In-Person, Outdoor Worship

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When does a government restriction burden congregants’ religious liberty too much, therefore becoming illegal and unenforceable under the federal Religious Freedom Restoration Act (RFRA)? On October 9, 2020, a D.C. federal trial court granted injunctive relief to a church against the D.C. Mayor, in Capitol Hill Baptist Church v. Bowser (Case No. 20-cv-02710). According to this important ruling, government restrictions on in-person gatherings should fail if unevenly enforced against houses of worship acting responsibly and in accordance with their sincerely held doctrinal beliefs.

In this decision, Judge McFadden first found that a D.C. municipal prohibition against gatherings of any type with more than 100 people (even if held outside, with masks, and socially distanced) substantially burdened the church’s religious exercise rights. He then determined that the asserted government public health interest was not sufficiently “compelling” to outweigh the church’s religious liberty interests, especially since D.C. did not similarly restrict either restaurants or mass protests. The Court’s decision provides a timely and fascinating RFRA evaluation, amidst as our country’s ongoing pandemic.

Prohibited In-Person Church Worship, But Permitted Mass Protests and Restaurant Service

As reflected in the Court’s opinion, Capitol Hill Baptist Church began worshipping 142 years ago. Before March 2020, the Church’s members continuously gathered for weekly in-person worship services with the sole exception of a three-week hiatus during the peak of the 1918 flu pandemic. The Church has about 1,000 regular Sunday service attendees. In March 2020, the Church halted in-person services due to D.C. Mayor Bowser’s declaration of a public-health emergency. As the court noted, the Church is unlike many other religious entities in that it “does not offer virtual worship services.” Rather, according to the Church, “a weekly in-person worship gathering of the entire congregation is a religious conviction for which there is no substitute.”

In D.C., gatherings were initially restricted to less ten people, at the pandemic’s onset. Then on June 22, 2020, the D.C. restrictions changed to allow restaurants to operate at 50% capacity indoors, with no limit on outdoor seating capacity, and religious gatherings limited to no more than 100 people (whether inside or outside). Such restrictions continue to date, and violators are subject to civil fines of up to $1,000 per violation.

In light of these restrictions, the Church initially stopped worship services altogether. But after mass protests occurred with no enforcement of the gathering restrictions, the Church petitioned for a waiver in June 2020. As the Church leadership explained, “Based 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.” The Church further offered to meet with masks, social distancing, and entirely outside.

The District did not respond to the Church’s June request. On September 1, 2020, the Church re-applied for a waiver. Two weeks later, the District denied the Church’s request, reiterating the gathering restrictions and refusing any waiver. The Church then sued for injunctive relief, seeking to worship together again without government recrimination.

RFRA Analysis – Part One: D.C. Prohibition “Substantially Burdens” the Church’s Religious Beliefs.

In a nutshell, the Religious Freedom Restoration Act of 1993 seeks to protect those whose religious exercise is “substantially burdened” by the government. As Judge McFadden observed, “This instinct to protect religious freedom has roots that predate the Constitution.”[1]

The first question under a RFRA analysis is thus whether the Church can show a substantial burden on its religious exercise. In its decision, the Court noted that a “’substantial burden’ exists when government action rises above de minimis inconveniences and puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’”[2] The Court then addressed the Church’s assertions of its religious beliefs, accepting them as sincerely held:

The Church believes that its congregation must meet in person each Sunday to worship together. The Church traces its commitment in part to “the scriptural exhortation that adherents should ‘not forsak[e] the assembling of ourselves together.’” Pl.’s Mot. at 10 (citing Hebrews 10:25 (KJV)). In a 2012 book, the Church’s Senior Pastor, Dr. Mark Dever, wrote that a “biblically ordered church regularly gathers the whole congregation” because without regularly meeting together, it ceases to be a “biblically ordered church.” Dunlop Decl. Ex. 3 at 6, ECF No. 5-3. This conviction echoes the Twelve Tribes of Israel gathering together to worship, see, e.g., 2 Kings 23:1–3 (KJV), and St. Paul’s admonition that the church is “the body of Christ,” 1 Corinthians 12:27 (KJV).[3]

The Court next addressed the District’s argument that the D.C. prohibition does not “substantially burden” the Church’s religious exercise because other “methods” of worship are available, such as online services and multiple smaller gatherings, as other houses of worship have accepted. The Court’s attentiveness to the Church’s beliefs, as well as its respect for such beliefs, merits the following lengthy quote from the Court’s decision:

But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. The “substantial burden inquiry asks whether the government has substantially burdened religious exercise . . . not whether [the Church] is able to engage in other forms of religious exercise.” Holt v. Hobbs, 574 U.S. 352, 361–62 (2015). The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial.” Hobby Lobby, 573 U.S at 725; see also On Fire Christian Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901, 911 (W.D. Ky. 2020) (holding that it is “not the role of a court to tell religious believers what is and isn’t important to their religion, so long as their belief in the religious importance is sincere”). It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.” Hebrews 10:25.

Nor should the Court weigh the relative burden to the Church by looking to how easily other religious groups with distinct beliefs have voluntarily changed their worship to accommodate the District’s restrictions. The “question that RFRA presents” is whether the challenged action “imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs.” Hobby Lobby, 573 U.S. at 724 (emphasis in original). The District’s restrictions surely have: The 100-person limit on worship services has prevented the Church from meeting as a complete congregation, as its faith requires, since March. The restrictions have thus “substantial[ly] pressure[d]” the Church to “modify [its] behavior and to violate [its] beliefs.” Kaemmerling, 553 F.3d at 678.[4]

As the Court summed up, the Church was faced with choosing between violating the law or its religious convictions.

RFRA Analysis – Part Two: Compelling Government Interest, Least Restrictive Means?

With the requisite showing of a “substantial burden” on the Church, the onus shifts to the District to prove that the gathering restriction, as applied to the Church (a) is in furtherance of a compelling governmental interest, and (b) is the least restrictive means of furthering that compelling governmental interest.

Moving into this part of the RFRA legal analysis, the Court warned that it must look beyond broad government interests and instead scrutinize the asserted harms of allowing an exemption for the Church. As the Court posited, this standard is “exceptionally demanding” (quoting Hobby Lobby v. Burwell, a landmark U.S. Supreme Court decision on RFRA). More specifically, the District would need to satisfy a strict scrutiny standard that “no alternative forms of regulation would accomplish the compelling interest without infringing religious exercise rights.”

Addressing the District’s arguments, the Court recognized that the COVID pandemic is extremely serious and amounts to a public health crisis. “But when a crisis stops being temporary, and as days and weeks turn to months and years, the slack in the leash eventually runs out. ‘While the law may take periodic naps during a pandemic, we will not let it sleep through one.’” (quoting Roberts v. Neace, 958 F.3d 409, 414–15 (6th Cir. 2020)). RFRA’s strict scrutiny balancing test still applies, notwithstanding the District’s urging that the 1905 smallpox-related case of Jacobson v. Massachusetts (on which other courts have relied in permitting draconian government restrictions), warrants relaxing the District’s heavy burden under RFRA – particularly with such significant religious liberty interests at stake.  

Notably, public health and safety concerns may still serve as compelling interests in the applicable RFRA analysis. The key question thus becomes whether the District’s gathering restriction is the “least restrictive means” for achieving the public health interests at hand.  

The Court found the evidence supporting the District’s position considerably lacking, particularly in light of mass protests condoned and encouraged by the District:

Consider the District’s response to mass protests over the past year, which included thousands of citizens marching through the streets of the city, including along streets that the District closed specifically for that purpose. And the Mayor appeared at one of the mass gatherings, “welcom[ing]” hundreds if not thousands of protestors tightly packed into Black Lives Matter Plaza and announcing that it was “so wonderful to see everybody peacefully protesting, wearing [their] mask[s].” Indeed, Mayor Bowser christened “Black Lives Matter Plaza” when “she directed the D.C. Department of Public Works to create a mural on 16th Street N.W., near the White House, to ‘honor the peaceful protesters from June 1, 2020 and send a message that District streets are a safe space for peaceful protestors.’”

No matter how the protests were organized and planned, the District’s (and in particular, Mayor Bowser’s) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church’s outdoor services. The Mayor’s apparent encouragement of these protests also implies that the District favors some gatherings (protests) over others (religious services). When faced with similar facts in a First Amendment challenge, another court explained that high-profile government officials encouraging and participating in protests “sent a clear message that mass protests are deserving of preferential treatment.” Soos v. Cuomo, --- F. Supp.3d ---, 2020 WL 3488742, at *12 (N.D.N.Y. June 26, 2020). The court noted that the officials—Governor Cuomo and Mayor de Blasio—could have “been silent” or “could have just as easily discouraged protests, short of condemning their message, in the name of public health.” Id. So too here. Mayor Bowser, like Mayor de Blasio, is a high-level government official with “clear enforcement power.” Id. Her actions speak volumes.[5]

The Court concluded that, on the record before it, the District failed to show a compelling interest in applying the 100-person limit to the Church’s proposed outdoor services. Additionally, the District failed to establish that there are no less restrictive means to accomplish its public safety goals. The Court further noted that D.C. restaurants face no similar capacity restriction on outdoor activities, although restaurants function similarly to worship activities at least in terms of fellowship and communion.

Injunctive Relief: Time for Church Again

As the final step in the Church’s injunction claim, the Court evaluated whether the Church had shown the requisite “irreparable harm” absent injunctive relief. As the Court recognized, “it is well settled that ‘the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”; the same is true for RFRA claims since they similarly cover free exercise claims. Moreover, as the Court found, the Church’s harm is not merely speculative: “This is not the sort of harm that has been held ‘far too speculative to warrant preliminary injunctive relief.’ . . . Missing a chance to gather on Sunday is not a “[m]ere injur[y] . . . in terms of money, time and energy,” but instead a harm for which “there can be no do over and no redress.’” (citations omitted).

The Court concluded its opinion by deciding that the balance of equities and the public interest favor granting the Church’s requested relief, particularly given the Church’s commitment to taking precautions such as holding services outdoors, providing for social distancing, and requiring masks. While the public clearly has an interest in controlling the spread of disease, so too does “the public also ha[ve] an interest in honoring protections for religious freedom in accordance with the laws passed by Congress.”

This court decision reflects tremendous respect for religious liberty, a detailed RFRA legal analysis, and a keen awareness of the stakes involved. Valid public safety concerns should not automatically overrule religious liberty interests. But as the Court here directed, neither should religious liberty rights be minimized or disregarded by government officials who unevenly enforce restrictions and fail to recognize and honor sincerely held and legitimate doctrinal beliefs – especially deeply cherished and core religious values such as worshipping together as an exercise of faith.

Will the District appeal the trial court’s preliminary injunctive ruling? If so, a court of appeals may scrutinize the Church’s numerous First Amendment claims that accompanied its RFRA claim. Alternatively, the trial court may further evaluate this case’s merits through a full evidentiary trial on the merits. At this point though, the Church has clearly prevailed on its free exercise right to worship as it wishes, consistent with safety-related considerations.


[1] Slip opinion at p. 8 (citing James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in SELECTED WRITINGS OF JAMES MADISON 21, 22 (Ralph Ketcham ed., 2006) (“The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”).

[2] Id. at p. 10 (quoting Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008)).

[3] Id.

[4] Id. at pp. 11-12.

[5] Id. at pp. 17-18.