Wisconsin’s Stay-at-Home Order Challenged in Court for Religious Discrimination

Wisconsin protest (Kamil Krzaczynski / AFP / Getty)
Kamil Krzaczynski / AFP / Getty

Two Wisconsin residents sued state and local officials Monday over a stay-at-home order that bans religious gatherings of more than nine people, and all public protests, while allowing larger gatherings in stores and other settings.

The plaintiffs, Jeré Fabick and Larry Chapman, are challenging Emergency Order 28, issued by Gov. Tony Evers and Secretary of Health Services Andrea Palm, arguing that it is “unconstitutional in singling out religious worship and political gatherings for special restrictions.”

Adam Laxalt, the former attorney general of Nevada, who is representing the plaintiffs through the Cooper & Kirk law firm, said in a memorandum released to the media:

As a former Attorney General, I understand that Government needs space to protect its citizens during times like these. While much of Wisconsin’s approach to fighting the pandemic is lawful, the state has clearly overstepped important Constitutional boundaries and has failed to protect its citizens’ fundamental liberties of freedom of conscience, right to assembly and free exercise, and the right to travel.

The filing notes:

While EO 28 permits 60 individuals—ten adult staff and 50 children (who obviously can not be required or expected to be properly masked and distanced)—to gather together in a day care center, it does not allow even ten religious believers (who can be required and expected to observe recognized protective measures) to gather together for worship. While Respondents allow hundreds of customers into Costco at any given time, no group of any size is allowed to assemble in the park, or any other public or private place, to engage in political protest or expression.

The filing also points out the the state’s rule discriminates against Jews in particular, since Orthodox Jews require a quorum of ten men for daily services to be held. “EO 28 operates as a complete ban on the form of worship practiced by some Wisconsinites,” the lawsuit states. “For example, under Jewish law, public prayer and worship may only occur in the presence of a Minyan, or quorum of ten Jewish males over the age of 13.”

The lawsuit follows U.S. Attorney General William Barr’s warning to state and local governments last week that they should not overreach in their stay-at-home orders during the coronavirus pandemic, and that the federal government would support challenges to orders that violated constitutional rights.

“[T]he Constitution is not suspended in times of crisis,” Barr wrote in a memorandum to U.S. Attorneys. “We must therefore be vigilant to ensure its protections are preserved, at the same time that the public is protected.”

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.

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