Three Christian bishops in Colorado are publicly backing the state's COVID-19 health orders one week after a federal judge granted two Denver-area churches exemptions to certain preventive measures.

"As spiritual leaders overseeing 427 churches in Colorado, we are critical of the recent federal court ruling regarding public health, which allows faith communities to not adhere to state public health mandates regarding crowd size and mask wearing," read the letter to Gov. Jared Polis.

The signatories were Kimberly D. Lucas of the Episcopal Church in Colorado; James W Gonia of the Evangelical Lutheran Church in America's Rocky Mountain Synod; and Karen Oliveto of the United Methodist Church's Mountain Sky Conference.

On Oct. 15, U.S. District Judge Daniel D. Domenico awarded a temporary restraining order to Denver Bible Church in Wheat Ridge and Community Baptist Church in Brighton, finding the state treated houses of worship more restrictively than businesses labeled critical.

“The court does not doubt that the State made these decisions in good faith, in an effort to balance the benefits of more public interaction against the added risk that inheres in it,” Domenico wrote. “But the 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.”

Frederick R. Yarger, who has known Domenico for years and succeeded Domenico as Colorado’s solicitor general, said the judge wrote “a careful decision that threads the needle.” 

“It applies only to churches engaged in worship,” Yarger explained. “This ruling doesn’t suggest that businesses themselves will be more successful in getting COVID-related regulations struck down. Religious organizations have special constitutional protection.”

The three bishops in their letter to Polis acknowledged that indoor worship creates an elevated risk for transmission, and indicated they would not seek to avail themselves of a similar federal order.

"Governor Polis, we commend you and your team for caring deeply about the citizens of Colorado. We stand behind you as you seek to keep all Coloradans safe during this COVID-19 pandemic," the bishops wrote. "Be assured that we will continue to expect all of our churches to prioritize care for our neighbors, following the guidelines your administration sets for the safe and responsible practice of faith communities during this public health crisis."

Domenico’s ruling applied to provisions in an Oct. 8 health order that had, in his view, no compelling reason for restricting the free exercise of religion guaranteed in the First Amendment. Organizations generally have to maintain a maximum of 50% capacity, not to exceed 50 people. 

Businesses deemed critical are ordered to comply with the public health order “to the greatest extent possible.” Domenico took this to mean such businesses were exempt from capacity limits, to the detriment of religious institutions.

“In other words, the JBS meat-packing plant in Greeley, the Amazon warehouses in Colorado Springs and Thornton, and your local Home Depot, Walmart, King Soopers, and marijuana shop are not under any additional occupancy limitation other than the six-foot distancing requirement,” he wrote.

Domenico likewise took issue with rules that exempted masking requirements for those receiving some personal services or eating at restaurants, but disallowed the removal of masks in churches when purportedly needed for the free exercise of religion.

The judge acknowledged that “the Constitution doesn’t kneecap a state’s pandemic response,” and that the uncertainty during the early days of the pandemic merited less judicial second-guessing of COVID-19 restrictions. He also clarified that churches will still have to abide by an array of generally-applicable health requirements, such as distancing and sanitization.

One day after issuing the temporary restraining order, Domenico denied the Polis Administration’s request to stay, or suspend, the decision until an appeals court had time to weigh in. The judge believed the state of Colorado was unlikely to prevail on the merits of their appeal, and had not successfully argued why the state should permit unmasked diners in restaurants but not unmasked congregants.

Brad Bergford and Rebecca Messall brought the case on behalf of the churches through the Thomas More Society, a conservative law firm that provides pro bono services. Bergford said the two organizations “plan to exercise their religious liberties” in response to the ruling, and declined to speculate about whether other entities would now have a foundation to similarly challenge the health orders.

“Our clients would not tell other churches how to respond in a given situation -- even this one,” he said. “That is for those churches to determine. And that's a good deal of the point here. The right and freedom to worship according to one's religious beliefs is essential to our constitutional system."

Although Yarger, the former solicitor general, said in March that courts would likely find COVID-19 restrictions lawful as long as the emergency was real, he explained on Wednesday that “as time goes on and we learn more about COVID, I think judges will be more sensitive to core constitutional rights, including religious freedom. Regulators have leeway to regulate businesses to protect health and safety. But they have to be careful when they limit religious activities — even if they mean well.”

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