Madison Diocese Says it Will Sue Over Religious Restrictions

Madison Bishop Donald Hying said Wednesday that the Church had an urgent mission to serve the community, one the reopening plan was preventing.

Bishop Donald J. hying during his installation Mass.
Bishop Donald J. hying during his installation Mass. (photo: Diocese of Madison.)

WASHINGTON, D.C. — Attorneys representing the Diocese of Madison sent a letter to Dane County and City of Madison officials on Wednesday, June 3, notifying officials they will file suit if parishes in the diocese are not permitted to operate at the same capacity as retail outlets. 

Under Dane County’s reopening guidelines, retail businesses are permitted to operate at 25% capacity. Places of worship, however, are limited to a maximum of 50 people regardless of the capacity of the building, with regular religious services classified as “mass gatherings,” similar to concerts or music festivals. 

“Under the Order, thousands of people may shop together at a mall; hundreds of employees may arrive at an office or factory every morning to conduct the business’s everyday operations; and hundreds of children may spend a few hours bouncing off each other at trampoline parks,” said the June 3 letter sent by lawyers from The Becket Fund for Religious Liberty. 

“But, because religious services have uniformly been deemed ‘Mass Gatherings,’ no more than 50 of the 1,225 seats in Saint Maria Goretti Church may be filled.”

Madison Bishop Donald Hying said Wednesday that the Church had an urgent mission to serve the community, one the reopening plan was preventing. 

“In the wake of the coronavirus pandemic and the racial injustice of the past week, our community is crying out for unity, for grace, and for spiritual healing. We are ready and able to answer that call, but the 50-person cap has unjustly stifled our pastoral mission,” the bishop said.

“Our diocese has been, and remains, committed to promoting and protecting the health and safety of our fellow Madisonians, but the county and city have wrongly subordinated the spiritual needs of the community to the operations of non-essential businesses,” he added. 

Places of worship are the only category capped in Madison by a specific number for “everyday operations” rather than by a general capacity restriction. Violators will be subject to fines and citations, and the Department of Health in Madison and Dane County threatened to send enforcement officers to monitor the congregation size at Masses. 

The letter is signed by attorneys from The Becket Fund and three other law firms. It is addressed to Dane County Executive Joseph T. Parisi, Madison Mayor Satya Rhodes-Conway, and Janel Heinrich, the director of public health for the City of Madison and Dane County. 

“Throughout this pandemic, the Church has been a good public citizen. It suspended public worship before the law required, and continues to impose greater operational restrictions than required,” the letter said, adding that the Church has continued to tend to the sick, poor, and incarcerated during this time. 

But, the lawyers argued, local Emergency Order 3, issued May 22, “treats religious interests unequally and unfairly.” 

“In no event, not even in the largest synagogue, mosque, church, or temple, and no matter how carefully spaced or protected, shall more than 50 people gather for worship. This unequal and unfair treatment violates the Church’s cherished constitutional freedoms and, more importantly, hobbles unconscionably its pastoral mission.” 

The first two reopening plans issued by Dane County did not contain the 50-person limit for houses of worship; churches were expected to reopen on the same level as other businesses and operate at 25% capacity. The Diocese of Madison developed a reopening plan that assumed they would be allowed to have congregations of this size. 

The third version, Executive Order 3, removed this parity and, the lawyers argue, “there is no valid, nondiscriminatory reason to maintain far stricter restrictions on houses of worship.” 

The letter requests that the county and city change the policy by June 5 and allow for churches to operate at 25% capacity, otherwise they will file suit. 

“To be clear, the Church has no particular interest in litigation or in a protracted dispute or an uncooperative relationship with civil authorities,” said the letter. 

“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 percent capacity,” they added, asserting that the Diocese of Madison “stands ready” to once again safely hold Mass.

The complaint by the Madison diocese is similar to challenges against state rules issued in Minnesota and Illinois. 

After they were challenged by the state’s bishops, who announced they would defy the governor, Minnesota rules were amended May 23. After three lawsuits and the intervention of the U.S. Supreme Court, Illinois Governor JB Prtizker announced May 28 that state guidelines for churches would be non-binding.