Liberty Counsel, representing the Andrew Wommack Ministries, Inc. in a lawsuit against the state of Colorado, on Monday responded to the state's request to the 10th Circuit Court of Appeals to deny an injunction sought by AWMI to hold an event that exceeds the capacity limit of 175 persons.
AWMI had filed a lawsuit last week in Denver District Court over the capacity limit, seeking a temporary restraining order. However, Judge Christine Arguello denied the motion, stating that to do so would "present a high risk of harm to the state of Colorado as well as the public in general."
AWMI then appealed to the 10th Circuit on Friday, which ordered the Polis administration to respond by 5 p.m. Sunday. AWMI is scheduled to begin its annual Ministers’ Conference at 7 p.m. Monday at the Institute's Charis Bible Campus in Woodland Park. As of 12:30 p.m., the court had not issued a ruling.
The Florida-based Liberty Counsel, a conservative legal nonprofit, filed its response on behalf of AWMI to the state's motion just after noon on Monday. In a statement, Liberty Counsel's Mat Staver said "we are pleased the Court of Appeals is responding quickly to our emergency request for an injunction pending appeal regarding Governor Jared Polis’ unconstitutional orders. The governor allows a dozen casinos to operate yet he discriminates against religious gatherings. It’s easy to see his priorities here.”
The Liberty statement also said the governor’s executive orders give "preferential treatment to nonreligious gatherings over religious gatherings. However, the city of Cripple Creek, which resides in the same county (Teller County) as AWMI, reopened its 12 casinos on June 15. Three of the city’s largest casino operators say customers have returned in larger numbers than expected with a revenue increase from last year from slot machines...Teller County has favored casinos with a 'wink and a nod' by allowing them to manipulate the number of people in their buildings in order to exceed the 175-person limit. Equal treatment is not offered to AWMI, which has a 3,100-seat sanctuary with a total of 5,000 seats in various rooms at its Charis Bible College campus."
AWMI has already violated the state's capacity limit, with devastating results. In July, according to the state's court filing with the 10th Circuit, AWMI held its Summer Family Bible Conference indoors with an estimated 800 individuals in attendance. "That event resulted in a COVID-19 outbreak that included 46 AWMI staff members and 17 attendees with confirmed or probable cases, including the ultimate death of one attendee."
The outbreak accounted for 24% of Teller County's case count, the state's motion said. The event went on despite a cease-and-desist order issued by Attorney General Phil Weiser's office, although that order was not issued until the day before the four-day conference ended.
"The risks present here are not imagined," the state's motion argued. "AWMI is itself an example of the heavy price attendees and the public at large will have to pay if these types of settings are permitted to disregard these important public health measures. And the harm does not end there. Outbreaks such as this further contribute to the significant strain on our healthcare system and consume an enormous amount of our limited public health resources. AWMI refused to fully participate in case investigation and contact tracing, further hindering defendants’ ability to curtail the spread of COVID-19."
The emergency measures taken by the state to quell the pandemic haven't targeted religious gatherings, the state's motion said.
"Houses of worship have remained open, and many have adapted using online, drive-in, or other creative ways of worship. But because of the documented public health risks posed by people gathering indoors in one place for extended periods of time, the State currently prevents houses of worship, like weddings, restaurants, and graduation ceremonies, from gathering more than 175 people indoors."
Public health orders, such as the one being challenged by AWMI, are based on scientific findings, not on religion; hence, the orders do not violate the First Amendment as claimed by AWMI, the state's motion says.
The motion also pointed out that AWMI waited until the last minute to file its lawsuit despite the fact that the order in question has been in place for months. AWMI should not be able to use "a self-created emergency as both a shield and sword: inoculating itself from factual scrutiny, while at the same time demanding immediate relief that endangers the community."
The motion notes that religious services have been responsible for substantial outbreaks of COVID-19, in addition to the one at AWMI in July. The motion cited six instances, including three in the United States, where people attending church services caught the virus, with several deaths.
A statement that accompanied the motion from Dr. Rachel Herlihy, the state's chief epidemiologist, pointed out the risk factors at houses of worship: interactions are longer in duration, similar to schools, concerts, sporting events and movie theaters. Most of those settings have reopened to very limited capacity, if at all.
Houses of worship also engage in customs that result in increased contact, Herlihy wrote, such as "shaking hands, observing Eucharist, passing a basket, or showing a sign of the peace may all place people in closer contact then they would be in other settings," all which raise the risk for transmission of COVID-19. That also includes singing in choirs, which Herlihy said "have been identified as a source of infection and transmission." She also pointed out that fire codes allow for higher density occupancy in houses of worship.
The public health orders allow AWMI to conduct "nonreligious counseling, social services, 'necessities of life,' and educational services for P-12 individuals at its facilities in unlimited numbers provided only that social distancing is practiced. But as soon as the gathering transitions to a religious meeting or worship, the 175-person limit applies." The statement also criticized Polis for allowing protests without social distancing or other health precautions.