Churches Win over Colorado Governor’s Pandemic Orders

DENVER, CO - NOVEMBER 06: Democratic Colorado Governor-elect Jared Polis speaks at an election night rally on November 6, 2018 in Denver, Colorado. Polis defeated incumbent Republican Walker Stapleton to become the first openly gay man elected Governor in the country.(Photo by Rick T. Wilking/Getty Images)
Rick T. Wilking/Getty Images

A federal judge ruled late last week in favor of two Colorado churches that challenged Gov. Jared Polis’s (D) pandemic orders requiring indoor occupancy limitations and masks during worship.

U.S. District Court Judge Daniel Domenico, a Trump appointee, granted Denver Bible Church and its pastor, Robert Enyart, as well as Community Baptist Church and its pastor, Joey Rhoads, a temporary restraining order and preliminary injunction.

The judge said Polis’s Public Health Order 20-35 violated the churches’ First Amendment right to the free exercise of religion.

Domenico wrote in his ruling:

[T]he Constitution does not allow the State to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant’s or spa’s.

The court found Polis’s order treats churches differently than secular establishments and events that pose an equal risk of spreading the Chinese virus.

“The lawsuit calls both the federal government and Colorado leaders into account for their violations of the right to free exercise of religion, among other abuses of power, primarily resulting from Governor Jared Polis’ COVID-19 related Executive Orders,” said Rebecca Messall, Thomas More Society special counsel, in a statement.

Domenico specifically found that limiting indoor church services to 175 people and requiring masks are not mandates that are equally applied between secular and religious gatherings.

The judge’s ruling noted the governor’s orders do not apply to schools, Amazon warehouses, Home Depot, Walmart, and marijuana shops.

“With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic,” Domenico wrote, noting as well:

The First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship’s religious exercise.

The judge’s order prohibits Colorado officials from enforcing the state’s Executive Orders and Public Health Orders against the churches and pastors, in particular matters of occupancy limitations and face mask requirements during worship services.

Polis updated Order 20-35 on October 8:

Houses of worship and Life Rites may operate at 50% of the posted occupancy limit indoors not to exceed 175 people, whichever is less, per room. For outdoor worship services, a house of worship must maintain 6 feet distance between non-household members and work with the appropriate local authority to obtain approval for the maximum number of individuals who may attend in the designated outdoor space.

The governor recently extended his order requiring masks to November 10. He allowed the Colorado Department of Public Health and Environment and local public health departments to grant waivers for “certain indoor activities that take place for a limited time period if such activities cannot practically or safely be performed while wearing a mask.”

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