Madison, Dane County drop 50-person attendance cap after lawsuit threat

The reversal was a swift victory for Bishop Donald J. Hying, who argued that the agency Public Health Madison & Dane County was singling out people of faith with an unconstitutional limit on attendance at Holy Mass and other religious services.

Madison Bishop Donald J. Hying (left) and Milwaukee Archbishop Jerome E. Listecki distribute Holy Communion at Hying’s installation Mass on June 25, 2019 at St. Maria Goretti Catholic Church in Madison. (Photo by Joseph M. Hanneman)

MADISON, Wisconsin — Less than 48 hours after refusing to budge on their 50-person limit on attendance at Holy Mass and other religious gatherings, local health officials abruptly dropped the rule on Friday in the face of a certain lawsuit by the Catholic Diocese of Madison and the Becket Fund for Religious Liberty.

The reversal was a swift victory for Bishop Donald J. Hying, who argued that the agency Public Health Madison & Dane County was singling out people of faith with an unconstitutional limit on attendance at Holy Mass and other religious services. Hying indicated on June 3 that the diocese would sue if the 50-person cap was not removed from emergency health orders issued during the coronavirus pandemic.

“As bishop, it is my duty to ensure that Sunday Mass be available as widely as possible to the Catholic faithful, while following best practices when it comes to public health,” Bishop Hying said in a statement. “Indeed, in a time of deep division, it is more important than ever for the Church to provide solace and comfort to all, in the great tradition of American religious freedom. We look forward to working together with the County and City to continue the reopening process in a safe, cooperative, and responsible manner.”

Friday’s development capped a whirlwind two weeks that saw churches prepare to reopen public worship at 25 percent of building capacity, only to have an even stricter rule imposed by Public Health Madison & Dane County. The diocese was not consulted before health officials imposed the strict attendance cap. City and county officials did not respond to Hying’s messages of concern for five days, he said. When PHMDC director Janel Heinrich called Hying on June 3, “I directly asked her whether there was any room for give on their part; she said there was not,” Hying wrote in a June 4 letter to priests of the diocese.

Dane County Executive Joe Parisi said the county did not want to engage in an expensive court battle at a time it needs to dedicate resources to fighting the spread of the Wuhan coronavirus known as COVID-19. He said the diocese’s position was a “legal gray area,” and he questioned why the Catholic Church is spending money on Washington D.C. lawyers. The diocese is being represented in the case by the Becket Fund and D.C. law firms Sidley Austin LLP and Troutman Sanders LLP.

“Basic life needs — food, shelter and clothing — are in such 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 said. “While the request of the Bishop of Madison raises a legal gray area, the public health science here is anything but unclear: COVID-19 is here, infecting more people every day and minimizing contact in large group settings is an incredibly effective approach to staying healthy.”

As of June 5, Dane County has 800 cases of coronavirus, with 36,243 people testing negative. Twenty-nine people have died from COVID-19 in Dane County, according to the Wisconsin Department of Health Services. Wisconsin has logged 19,892 cases and 626 deaths attributed to the novel coronavirus that spread from China early this year.

Heinrich defended as “neutral and even-handed” her agency’s emergency rule that limited churches’ worship-service attendance to 50 people. “These orders were put in place for a reason — we are in the midst of a public health emergency and we are going to do all we can to reduce the risk of public infection,” she said.

Eric Rassbach, senior counsel for the Becket Fund, said the county’s change of heart “shouldn’t have taken so long.”

“The First Amendment protects both prayer and protest. Putting an arbitrary numerical cap on worship services while allowing thousands to protest makes no sense from a legal or public health perspective,” Rassbach said. “Most other governments nationwide have already lifted their COVID-related restrictions on worship. The few remaining holdouts should take note and come into compliance with the First Amendment.”

Thousands of people in Madison and surrounding communities have taken part in protests over the death of a black man in Minneapolis at the hands of four police officers. On several nights, the local protests were replaced by rioting, looting and widespread vandalism in Downtown Madison. Protesters twice shut down the heavily traveled Beltline expressway that connects east and west Madison. Madison Mayor Satya Rhodes-Conway praised the protesters who shut down another busy thoroughfare, John Nolen Drive. She also praised the graffiti painted on boarded up storefronts downtown as “amazing art.”

Catholic parishes throughout Dane County had plans already laid out for Mass attendance at 25 percent of seating capacity. One typical mid-size church will limit attendance to 140 people out of a 560-person seating capacity. A smaller church will use a 75-person limit out of its capacity for 300. The largest Catholic Church in Dane County, Madison’s St. Maria Goretti, normally seats up to 1,200 people, but will restrict attendance to 300 per Mass.

Some churches have roped off every other or every third row to provide social distancing. Some applied graphics to the floor indicating 6-foot separation when standing in line for Communion. Many have added Sunday Masses to accommodate more parishioners. Unlike a number of other dioceses nationwide, the Diocese of Madison has no restriction on receiving Communion on the tongue.

While Friday’s announcement settled the immediate question of Mass attendance during Phase 1 of the “Forward Dane” reopening plan, there is still plenty of discussion about whether government has power to interfere with religious worship.

In mid-May, the Wisconsin Supreme Court struck down Gov. Tony Evers “Safer at Home” rules that banned in-person dining and defined which private businesses were considered “essential” and could maintain operation. The court ruled that the Wisconsin Department of Health Services exceeded its authority in imposing restrictions under the Safer at Home plan. The state regulations were deemed “unlawful, invalid, and unenforceable” and struck down as a “vast seizure of power” that usurped mandatory oversight by the Wisconsin Legislature.

In the June 3 letter to County Executive Parisi and Mayor Rhodes-Conway, lawyers for the Madison diocese said the 50-person cap on church attendance “suggests animus toward religious gatherings.” They argued that the Wisconsin Constitution mandates that “the right of every person to worship Almighty God according to the dictates of conscience shall never be infringed.”

“Freedom of worship is so fundamental that the Wisconsin courts strictly scrutinize virtually any burden placed upon it,” the letter said. Madison and Dane County’s “discriminatory actions against religion cannot survive such scrutiny.”

Luke Goodrich, vice president and senior counsel at the Becket Fund, said churches have fundamental protections, but they are not absolute. “The government has authority to protect public health, and that authority must be balanced with the right of religious liberty,” said Goodrich, author of Free to Believe: the Battle Over Religious Liberty in America.

“As long as the government does so uniformly—not targeting religious gatherings for special enforcement or disfavor—courts are likely to say that the government has remained within its proper bounds,” Goodrich said in a recent interview. “But if the government targets religious gatherings while ignoring similar nonreligious gatherings, or if it goes after certain kinds of religious gatherings that pose no threat to public health—such as a drive-in church service where everyone stays in