MADISON – Dane County modified its stay-at-home order Friday to allow churches to operate at 25% capacity after it faced a legal threat from the Catholic Diocese of Madison.
A team of lawyers from three law firms and a religious liberty foundation working with the diocese sent a 17-page letter to city and county leaders this week alleging the previous order unconstitutionally discriminated against churches. The order, as with others around the country, is meant to contain the spread of the coronavirus pandemic.
The earlier order had limited worship services to 50 people. The same order had a different limit for businesses — 25% of capacity.
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That meant large businesses could have more than 50 people at a time, unlike churches and other places of worship. Large churches had to operate at well below 25% of their capacities.
The new order puts businesses and houses of worship on the same footing. Both can now operate at 25% of their capacities.
The order was issued by Janel Heinrich, the head of Madison and Dane County’s combined public health department.
In a statement, Dane County Executive Joe Parisi said the order was updated to avoid a costly legal fight, but he urged people to limit their exposure to others during the pandemic.
“Basic life needs — food, shelter, and clothing — are in such high demand in our community given the current pandemic, so it’s hard to imagine the best use of parishioner or taxpayer dollars right now is in a courtroom,” Parisi’s statement said.
Bishop Donald Hying welcomed the decision.
“In a time of deep division, it is more important than ever for the Church to provide solace and comfort to all,” Hying said in a statement.
The legal threat to local leaders came from a legal team representing Hying and the diocese. The team includes attorneys from the Becket Fund for Religious Liberty and attorneys with the law firms Sidley Austin, Troutman Sanders and Hansen Reynolds.
As with the previous order, the new one bans gatherings of more than 50 people.
For the last week, hundreds of people have gathered at the state Capitol and elsewhere in Madison to protest the death of an unarmed black man, George Floyd, after a white Minneapolis police officer, Derek Chauvin, kneeled on his neck.
Police have not been enforcing the ban on large gatherings for those events.
Eric Rassbach, senior counsel and vice president for Becket, said officials should have changed their stance on religious services sooner.
“The First Amendment protects both prayer and protest,” he said in a statement. “Putting an arbitrary numerical cap on worship services while allowing thousands to protest makes no sense from a legal or public health perspective.
Contact Patrick Marley at firstname.lastname@example.org. Follow him on Twitter at @patrickdmarley.
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