Days after dozens of Catholics demonstrated outside the Wisconsin state capitol, the Public Health Department for the city of Madison and Dane County changed its coronavirus guidance on Friday, removing a 50-person cap on in-person religious services that did not apply to any secular activities.
"Churches that wish to have services can do so up to 25% of their capacity," the Dane County public health department said in a joint press release with the city of Madison.
"The previous order — put in place to reduce the risk of an outbreak of COVID-19 from occurring where people gather — allowed churches to have as many services as they wanted, but asked they be capped at 50 parishioners per service," it continued.
Eric Rassbach, vice president and senior counsel at Becket, noted that houses of worship were being penalized and faced restrictions that were never imposed on other activities, such as mass protests.
"Putting an arbitrary numerical cap on worship services while allowing thousands to protest makes no sense from a legal or public health perspective. Most other governments nationwide have already lifted their COVID-related restrictions on worship. The few remaining holdouts should take note and come into compliance with the First Amendment," he said.
Rassbach was referring to the two weeks of nationwide protests spurred by the officer-involved death of George Floyd, a 46-year-old black man who was arrested in Minneapolis for passing off a counterfeit $20 bill to buy cigarettes at a convenience store.
In a letter sent to Dane County officials on behalf of Bishop Donald J. Hying and the Roman Catholic Diocese of Madison, Becket and the law firms Sidley Austin and Troutman Sanders, said the Madison and Dane County's "arbitrary" 50-person cap on houses of worship not only violated the First Amendment, but it also violated the state's constitution.
"Throughout this pandemic, the Church has been a good public citizen," the letter said. "It suspended public worship before the law required, and continues to impose greater operational restrictions than required. At the same time, the Church has continued its ministry to the sick, the poor, and the incarcerated as best as possible, while generally supporting the unprecedented restrictions that public health officials have deemed necessary to combat the novel coronavirus."
It added: "To be clear, the Church has no particular interest in litigation or in a protracted dispute or an uncooperative relationship with civil authorities. However, the Church is legally and morally entitled to be treated equally with other similarly situated nonreligious associations that have been permitted to reopen up to 25% capacity."
Hying said that as a bishop, "it is my duty to ensure that Sunday mass be available as widely as possible to the Catholic faithful, while following best practices when it comes to public health."
"Indeed, in a time of deep division, it is more important than ever for the Church to provide solace and comfort to all, in the great tradition of American religious freedom," he added, assuring that the reopening process would be done "in a safe, cooperative, and responsible manner," he added.
The new order came after the Diocese of Madison took action last Friday by demonstrating against churches being threatened with $1,000 fines if they held in-person services attended by more than 50 people or exceeded 25% of their buildings' capacity.
Local officials said they were seeking "voluntary" compliance while under phase one of the county's reopening plan.
The demonstration, called "Rosary rally," was organized by two priests in the diocese named Brian Dulli and Richard Heilman, according to The Catholic World Report.
"You tried to pull a fast one, and we are not afraid," Dulli, the priest of St. Patrick Catholic Church in Cottage Grove, said during the demonstration. "We're not interested in complying any longer with unjust orders."