D.C.  Attorney General Karl A. Racine announced in a Dec. 22 statement the settlement of a lawsuit filed 11 days earlier by the Archdiocese of Washington regarding the District of Columbia’s previous cap on attendance at houses of worship during this stage of the COVID-19 pandemic.  

On Nov. 23, D.C. Mayor Muriel Bowser had issued an order setting a cap of 50 people at churches in the District of Columbia, which the Archdiocese of Washington challenged in a Dec. 11 lawsuit, saying that cap violated the religious freedom and First Amendment guarantees for religious groups by singling them out for more restrictive COVID-19 limitations on public gatherings compared to those placed on businesses and other venues in the city.

 In an executive order issued Dec. 16, Mayor Bowser in response to a the archdiocese’s lawsuit issued five days earlier, modified the current limits for gatherings at houses of worship in the District of Columbia during the coronavirus pandemic to 25 percent of capacity and no more than 250 persons and established those same limits for other businesses and venues.

In his statement about the Archdiocese of Washington and the District of Columbia settling the archdiocese’s lawsuit, D.C. Attorney General Racine said, “We are pleased that we were able to reach this agreement with the Catholic Archdiocese of Washington, and that the Church’s concerns were resolved by the mayor’s latest order. As with other mayoral orders, if changes are needed to better protect public health, those affected will be notified in advance.”  

Racine in his statement also praised D.C. residents for adopting safety measures in response to the pandemic, and he encouraged them to keep vigilant.

“I am proud that D.C. residents have overwhelmingly embraced science-based commonsense measures to protect our personal safety and that of our neighbors. By wearing masks, frequently washing our hands, and limiting contact with others, the District has maintained a lower COVID-19 case rate than many states—though we have recently seen cases rising,” Racine said. “While some churches may now allow up to 250 worshippers to attend services, I strongly encourage residents to continue following the guidance of medical and public health experts and help stop the spread of COVID-19: stay home whenever possible, and avoid spending time indoors with people outside your household.”

The D.C. attorney general concluded his statement by noting, “It is my hope that District residents will continue to support and keep each other safe through this difficult and unprecedented time, and that we have a peaceful, healthy, and safe holiday season.”

The joint stipulation and agreement between the Archdiocese of Washington and the District of Columbia regarding the archdiocese’s lawsuit noted, “the parties desire to resolve certain aspects of their dispute, and to work together to allow for safe and responsible religious worship in the District.”

The agreement also said, “The Archdiocese reserves its rights, does not waive any claim, and retains the right to seek relief from any current or future restriction on religious exercise, including but not limited to any restriction that treats indoor worship services less favorably than any essential business or any other entity or activity.”

In an op-ed column published in the Dec. 22, 2020 Washington Post, Washington Cardinal Wilton Gregory said the Archdiocese of Washington’s recent lawsuit against the District of Columbia’s COVID-19 safety regulations that had limited churches to no more than 50 worshippers – which the D.C. mayor recently amended to allow 25 percent of church capacity or a maximum of 250 people – was a “last resort” to “protect the free exercise of religion in the nation’s capital.”

“We appreciate that our local officials have had to make difficult decisions in the face of unprecedented challenges. But praying apart is not the same as praying together,” the cardinal wrote in the Post op-ed, noting that the lawsuit was filed “as we could no longer bear the burden of turning away the faithful from Mass due to D.C.’s 50-person cap on religious services when big-box stores, retailers and even liquor stores and many other venues continued to operate without similar limits.”

Cardinal Gregory added, “The right of the faithful to assemble for religious services is one of our most cherished constitutional legacies, and we maintain it should be treated as an ‘essential ‘activity’ – just as D.C. regards shopping and so many other activities as essential.”

The cardinal also expressed hope that as local authorities craft policies aimed at ensuring the health and safety of their communities during the pandemic, that they also recognize that “the public welfare is served when people of faith gather to worship, pray and receive spiritual nourishment – particularly in times of crisis.”

In her executive order issued Dec. 16, D.C. Mayor Bowser modified the current limits for gatherings at houses of worship in the District of Columbia during the coronavirus pandemic to 25 percent of capacity and no more than 250 persons.

Her order noted, “In order to resolve litigation, this order repeals the numeric cap of 50 persons on gatherings at houses of worship and allows physically large facilities to accommodate more worshippers based on their overall capacity, up to a maximum of 250 persons.”

Mayor Bowser’s order, which became effective at 12:01 a.m. Dec. 17 and will be in effect through Dec. 31, replaced a Nov. 23 order that had set a 50-person cap on gatherings in houses of worship in the District of Columbia. 

After Mayor Bowser’s new executive order on church attendance in the District, the Archdiocese of Washington issued a statement on Dec. 17, saying, “Last night, the mayor issued a new executive order lifting the 50-person cap on religious services in the District of Columbia and replacing it with new restrictions on religious worship.  We are grateful that the new order will allow us to welcome more of the faithful to church during the Christmas season and beyond. We are continuing to evaluate the impact of these new rules, and it may still be necessary for the court to weigh in on the proper balance between public safety and the fundamental right to worship.  As always, we welcome continued dialogue with the mayor’s office to ensure that current and future restrictions are fairly applied and do not unduly burden the free exercise of religion.”      

In response to the mayor’s earlier Nov. 23 order, the Archdiocese of Washington filed a lawsuit on Dec. 11, petitioning the D.C. District Court to lift the 50-person cap on indoor religious gatherings in the District of Columbia.  In the suit, the Archdiocese contended that restriction violated the Religious Freedom Restoration Act, the First Amendment’s Free Exercise Clause, and the First Amendment’s guarantees of freedom of speech, assembly, and association. 

Father Daniel Carson, the vicar general and moderator of the Curia for the Archdiocese of Washington, said in a Dec. 14 interview with the Catholic Standard that the archdiocese through its lawsuit was seeking to have the District of Columbia remove that imposed cap of 50 people able to attend religious gatherings in churches in the District, and instead “implement a percentage (limit), based upon capacity of the worship space of the building.”

The priest noted that surrounding Maryland jurisdictions responding to the COVID-19 pandemic have currently implemented limitations on attendance at worship services based on a percentage of the seating capacity of the building, with the limit now being 50 percent in Southern Maryland and up to 25 percent in both Prince George’s and Montgomery counties.

Also on Dec. 14, the Archdiocese of Washington filed a temporary restraining order seeking to have the District Court remove the 50-person cap on church attendance in the District of Columbia in advance of Christmas.

Mayor Bowser’s order that went into effect on Dec. 17 specified that it “is hereby modified to provide that houses of worship may admit no more than 25 percent of their capacity as specified in their certificate of occupancy for the room or area where worship services will be held, or 250 persons, whichever is fewer. This total limit includes all persons: worshippers, clergy and staff.”

The mayor’s new order said houses of worship in the District of Columbia must continue to adhere to guidance from the D.C. Department of Health, including having “a reservation system or some means ensuring that there will not be crowding inside or outside the facility.” The order also noted safety protocols must include mandatory masking, plans for ingress and egress of worshippers, and that household members attending together may sit as a group, and each group must be seated at least six feet apart from other individuals or groups. Those safety protocols have been in effect at Catholic churches in the Archdiocese of Washington since public Masses resumed after Memorial Day. Local Catholic churches have blocked off alternating pews and required masking and social distancing.

Mayor Bowser’s updated order also addressed concerns raised in the archdiocese’s lawsuit that her Nov. 23 order had set much stricter limits on attendance at D.C. houses of worship compared with businesses and other venues. Her Dec. 16 order said it “ensures parity in terms of capacity limits – both as a percentage and a cap in attendance – among more activities,” setting that 25 percent occupancy rate and maximum of 250 persons also for “restaurants, fields, gyms and other recreational facilities, guided tours, libraries, real estate and construction, retail food sellers and other essential and non-essential businesses.”

The mayor’s new order underscored the seriousness of the COVID-19 pandemic, noting that “the District of Columbia, like the rest of the country, is currently confronting the worst surge of coronavirus cases yet,” and pointed out that the District’s number of COVID-19 cases have “multiplied nearly eight-fold since early July. The District’s overall number of positive cases totals 25,602 and 720 District residents have lost their lives to the virus already.”

Mayor Bowser’s order noted that during the pandemic, “large gatherings remain discouraged,” and she added, “the vast majority of houses of worship have accommodated their congregations’ spiritual needs through televised or web-based services, individual counseling, small sacramental services and online giving. Such practices continue to be encouraged.”

The Catholic News Service reported that the Supreme Court, once again siding with houses of worship opposed to pandemic-related restrictions, ordered lower federal courts in Colorado and New Jersey Dec. 15 to reexamine state-imposed indoor worship restrictions.

The court's move was made in light of its recent decision in late November to lift similar restrictions for the Diocese of Brooklyn, New York. In early December, the court also told federal judges to reexamine limits on California churches based on this decision.

The Archdiocese of Washington in its Dec. 11 lawsuit against the District of Columbia cited the Supreme Court’s ruling in the Brooklyn case.

In a recent  interview with journalist Christiane Amanpour for CNN International and PBS, Cardinal Wilton Gregory, the archbishop of Washington, noted that the archdiocese has been committed to following strict safety protocols during the coronavirus pandemic.

“We do believe that we should, as religious people, be allowed the same latitude that other public structures are – such as grocery stores and other public venues that have no limits or at least very generous limits. Too often, churches and other houses of worship have more restrictions,” Cardinal Gregory said in that interview. “We, here in the Archdiocese of Washington, have received no cases - at least none that we know of - where people have been infected by attending church. So we have asked for at least the possibility of proportional attendance. We just think we should not be treated any differently and certainly not unfairly in comparison to other public places for attendance.”

In his Dec. 14 interview, Father Carson said, “I consider the need for public worship as essential to the well-being of the faithful, and since we’ve reopened, we’ve done it safely.” He added, “There’s no reason to think we can’t continue safe worship.”

In a Dec. 11 letter to priests of the archdiocese announcing the lawsuit, Father Carson said, “We were disappointed by the mayor’s recent executive order, issued just before the start of Advent, which imposes a 50-person cap on Mass capacity. These restrictions single out religious worship for harsher treatment than similar secular activities, such as shopping, dining, and exercising. We have tried to address our concerns directly with the District government and requested relief from a hard cap on attendance at indoor religious services. Unfortunately, as Christmas fast approaches, these burdensome restrictions remain in place. As a last resort, earlier today we filed suit in federal court to request judicial relief from the District’s hard cap on indoor religious worship.” 

Father Carson in his Dec. 14 interview noted that pastors in the District of Columbia have said that limit had prevented them from ministering to some of their parishioners, whom they’ve had to turn away from attending Mass because of the 50-person cap.

He noted how the Basilica of the National Shrine of the Immaculate Conception, the largest Catholic church in North America, can seat 3,000 worshipers. Only allowing 50 people to attend Mass there is unreasonable, he said, adding, “In any of our churches, it’s unreasonable.”

The Archdiocese of Washington’s Dec. 11 lawsuit was filed in the United States District Court for the District of Columbia, and listed the Roman Catholic archbishop of Washington representing the archdiocese as the plaintiff, and the defendants as Mayor Bowser and the District of Columbia. The suit was submitted by attorneys from Jones Day and the Becket Fund for Religious Liberty.

Noting that as Christmas approaches, the District had imposed 50-person caps on Mass attendance, even for masked, socially distanced services in churches that in many cases can seat more than 1,000 people, the suit said, “These restrictions are unscientific, in that they bear no relation to either the size of the building or the safety of the activity. These restrictions are discriminatory, in that they single out religious worship as a disfavored activity, even though it has been proven safer than many other activities the District favors.”

The lawsuit pointed out that the mayor’s Nov. 23 restrictions on the number of people allowed to attend church were then stricter than its capacity-based limits on public libraries, personal service businesses and indoor dining facilities, and on gyms and fitness centers that have limits based on square footage. 

“By adopting policies that facially discriminate against houses of worship, defendants have targeted plaintiff’s religious activities for discrimination and chilled the free exercise of religion,” the lawsuit said, charging that the District of Columbia’s current limits on the sizes of church attendance violate protections guaranteed by the First Amendment and the Religious Freedom Restoration Act.

The lawsuit requested that the court “issue temporary, preliminary and permanent injunctive relief prohibiting defendants from enforcing their unlawful policies against plaintiff’s religious beliefs and activities.”

The documentation for the lawsuit also noted that the Catholic Church and its ministries have “been on the front lines of responding to the COVID crisis,” including Catholic Charities of the Archdiocese of Washington, which has served more than one million meals since the pandemic began.

The importance of the Christmas season for the faithful was underscored in the archdiocese’s lawsuit, which noted, “Christmas should be a time for reconciliation and joy, and the archdiocese simply wants to welcome its flock home. It respectfully requests that it be allowed to do so.”