Cleric Lawsuits Seek To Limit Governor's Emergency Powers

DOVER, Del. (AP) — Two Delaware pastors are asking a court to issue a permanent injunction prohibiting Democratic Gov. John Carney and his successors from exercising emergency powers that would restrict religious gatherings and practices.

In separate Chancery Court lawsuits filed Wednesday, the clerics also seek a declaration that Carney’s previous COVID-19 restrictions on religious practices were unconstitutional.

The lawsuits were filed on behalf of the Rev. Alan Hines, pastor of Townsend Free Will Baptist Church, and the Rev. David Landow, pastor of Emmanuel Orthodox Presbyterian Church in Wilmington. They seek to prohibit any Delaware governor from issuing an order during an emergency that would prohibit in-person religious worship or rituals such as baptism and Communion, limit preaching or singing, restrict worship attendance based on age or health condition, or favor one religion over another.

The complaints were filed a little more than a year after the settlement of a federal lawsuit in which another pastor had challenged Carney’s coronavirus restrictions as unconstitutional.

Carney rescinded many of the restrictions after the federal lawsuit was filed, and his lawyers argued that the claims were moot. But the plaintiff’s attorneys, some of whom are also involved in the lawsuits filed Wednesday, asked for an injunction prohibiting the governor from imposing similar limitations in the future.

Under the settlement, Carney was required to treat houses of worship in a neutral manner in any future emergency. Among other things, churches would be included among businesses or activities that are considered essential. Restrictions that apply only to religious rituals would be forbidden, as would age-based attendance limits imposed solely on religious worship.

Attorneys noted in Wednesday’s court filing that, in settling the federal lawsuit, Carney reserved the right to impose “neutral rules of general applicability” that could affect houses of worship, and to take any enforcement action authorized by law against a house of worship or affiliated ministry.

“Consequently, instead of granting Pastor Hines absolute protection in the future, defendant again can return to his prior illegal ways described herein, such as a shut down of Sunday religious worship through the use of a neutral rule of general applicability,” they wrote.

Jonathan Starkey, a spokesman for Carney, said the governor’s office does not comment on active litigation.

In addition to seeking protection against future restrictions, the plaintiffs want the court to declare that Carney’s previous COVID-19 restrictions on religious practices violated the state and federal constitutions. Their attorneys noted that, unlike secular businesses, religious entities have specific constitutional protections against government intrusion.

Article I of Delaware’s constitution, for example, enshrines freedom of religion and states that “no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship, nor a preference given by law to any religious societies, denominations, or modes of worship.”

At the outset of the pandemic last year, Carney ordered that worship services be limited to no more than 10 people, a restriction he did not impose at that time on more than 230 other business and industry entities deemed “essential.” Amid increasing criticism, he issued a revised emergency declaration allowing churches to choose between abiding by the 10-person limit or allowing attendance of up to 30% of stated fire occupancy — but only if they complied with several conditions dictating how worship services could be held.

Those conditions included banning person-to-person Communion and physical contact during baptisms, and prohibiting the use of choirs, handheld microphones and holy water receptacles. Churches also were told to deny entry to anyone 65 or older, a restriction not placed on secular businesses. While baptisms were banned, there was no prohibition on Jewish circumcisions or on day care workers and doctors holding infants.

After the federal lawsuit was filed, Carney withdrew some of the restrictions and revised others. The revised limitations included requiring worship leaders and singers to wear masks or face shields when speaking or singing. If they were unable to do so, the state suggested, they should turn their backs to the congregation.

Carney then changed his position again, eliminating the option for houses of worship to hold ceremonies as they please as long as no more than 10 people are present. The new guidance also required that anyone speaking, reading or singing to a live audience must face away from the audience if they were not wearing a face covering or face shield. Other alternatives included keeping at least 13 feet (4 meters) away from the audience or standing behind a physical barrier or partition, such as a sneeze guard. Carney later eliminated that directive as well.