When May a State Restrict Religious Gatherings? 

The Delaware Supreme Court will hear oral arguments Wednesday in a case challenging restrictions on religious gatherings during the Covid-19 pandemic. The case involves questions about how to moderate conflicting interests in a diverse and polarized society, as well as jurisdictional and immunity doctrines related to when and how courts are permitted to adjudicate such claims.

For a six-week period in the early days of the pandemic, the governor of Delaware restricted communal religious worship to 10 people or fewer. Later, places of worship were permitted to operate at 30 percent capacity, but only under strict conditions, including mask requirements for preachers and the banning of rituals like baptism and communion.

The plaintiffs — a Baptist pastor and Presbyterian reverend — argue that the governor’s Covid-19 orders violated their religious rights as enshrined in Article I, Section 1, of the Delaware Constitution and the federal First Amendment. Specifically, they say the governor singled out religion for disfavored treatment, noting that there were no comparable restrictions on any secular entity. Other essential services and businesses, such as pharmacies and food distributors, the plaintiffs point out, were never limited to only 10 attendants. They also say the measures discriminated between religions by favoring people of the Jewish faith. For example, the physical contact required for baptisms was banned but no similar restriction was imposed on circumcisions. The plaintiffs are seeking declaratory and injunctive relief as well as damages for the alleged constitutional violations.

The governor contends that there is “no present case or controversy” warranting declaratory relief and that the plaintiffs lack standing because the challenged restrictions had not been in effect for 18 months when they brought suit. For similar reasons, and because any future harm would be speculative, the governor argues there is no need for injunctive relief.

Regarding the federal damages claims for violations of the First Amendment, the governor argues they are barred by qualified immunity, which protects state officials from liability unless they violate a clearly established constitutional right.

The primary issue on appeal, however, involves the state constitutional damages claims. As to those claims, the governor contends that there is no private cause of action to enforce Article 1, Section 1 of the Delaware Constitution because the state does not have an analog to the federal statute that authorizes private causes of actions against state officers for damages from constitutional violations. The governor further argues that the restrictions were an appropriate use of his emergency powers and that the claims are barred by the Delaware Tort Claims Act, which blocks suits against public officials for discretionary actions. According to the governor, because the state’s emergency management statute gives him wide latitude to decide how to respond to emergencies, he had discretion to impose the restrictions.

But, counter the plaintiffs, no emergency statute can give the governor discretion to take actions that are forbidden by the state constitution. The six references to “worship” in the preamble and religious liberty clause and the inclusion at the end of the bill of rights of a clause specifying that all of these rights are “reserved out of the general powers of the government” reflect a clear intent to exclude from the state’s power the ability to restrict worship, the plaintiffs argue. The plaintiffs marshal historical evidence to support that interpretation, noting that the framers of the Delaware Constitution “lived in an era of intimate familiarity with contagious diseases, plagues and epidemics” — including smallpox, the plague, and malaria — and yet “nevertheless chose the specific plain language of Article I, [Section] 1 stripping Delaware government of any ‘power to’ ‘interfere with . . . religious worship.’”

The trial court sided with the governor, dismissing all of the plaintiffs’ claims.

Not surprisingly, this case has been politically charged from the beginning. From the early days of the pandemic, openness to restrictions generally fell along ideological lines, with those on the right favoring fewer Covid-19 restrictions. The arguments in the briefing reflect that divide. For example, the plaintiffs’ opening brief refers to the governor’s order that religious leaders wear a mask while preaching as a “pastor gag rule” and calls out both the Democratic governor and then-candidate Joe Biden for failing to mask. All 21 Republican members of the Delaware legislature joined an amicus curiae brief in support of the plaintiffs.

As a law professor who approaches legal issues from an interdisciplinary lens, I see both parties to this dispute as defending legitimate and important interests. The religious leaders wish to protect the right to worship freely. The governor wishes to protect state officials’ ability to stop external forces from harming and potentially killing their constituents. In a world with thousands of religions, it is understandable that the plaintiffs would be angered by the perceptions that their religion was singled out. Perhaps the governor should have taken further steps to address religious groups’ fears and concerns over the limitations on their worship.

In contrast to the real human emotion implicated in this case and the lessons we can take away about better understanding our neighbors, the issues before the Delaware Supreme Court — sovereign immunity, private causes of action, and the like — are decidedly dry, but also important for determining when and how courts will even reach the merits of such claims. For those who care about public health and religious freedom, the stakes of the court’s ultimate decision are high.

Oral arguments in In re Covid-related Restrictions on Religious Services are scheduled for May 22 and can be watched here.

Geeta Tewari is an associate professor of law and the H. Albert Young Fellow in Constitutional Law at Widener University Delaware Law School, where she teaches contract and business law through an interdisciplinary lens. Her legal scholarship centers on incorporating marginalized perspectives into the study and practice of contract and business law, known as narrative justice. She founded the Narrative Justice Project to support collaboration between artists and lawyers for dialogue vital to justice and humanity.