Md. Court Holds First Amendment Blocks Only “Arbitrary and Unreasonable” Public Health Measures

Judge Catherine C. Blake ruled Wednesday in the District of Maryland that the First Amendment blocked states from developing unreasonable or arbitrary public health measures to combat the proliferation of the COVID-19 pandemic, but stopped short of enjoining all public health measures, even if said measures infringed upon the practice of religion. 

The underlying litigation involved a group of “citizens…and religious leaders” in Maryland, who sued the state seeking to challenge the “executive orders issued by Maryland Governor Lawrence Hogan aimed at preventing the spread of COVID-19.” The plaintiffs alleged the orders, which generally restricted the number of people allowed in religious institutions to 10 at a time during an active state of emergency related to the COVID-19 pandemic, were constitutionally impermissible under the Establishment Clause. 

The court initially denied the plaintiffs a preliminary injunction, holding that the religious leaders were unlikely to succeed on the merits of the Establishment Clause claim. The plaintiffs subsequently filed an amended complaint, with the defendants replying with a motion to dismiss the amended complaint on grounds that the altered pleading made no substantive changes to the legal arguments. 

The Establishment Clause prohibits the governments from making any law “respecting an establishment of religion” with the opinion explaining that the “clearest command of this provision is that one religious denomination cannot be officially preferred over another…nor can the government prefer religion over nonreligion.” The plaintiffs averred that the public health orders operated as a preference, writing that the “Governor is displaying an impermissible hostility toward religious gatherings and is showing favoritism toward non-religious gatherings.” 

The court disagreed with the plaintiffs’ amended arguments and granted the defendant the motion to dismiss on grounds that the plaintiffs failed to state a proper legal claim that the public health orders violated the Establishment Clause. A proper claim, the court held, needs to allege that the public measures at issue “have no real or substantial relation to protecting public health” or that said measures are “beyond all question, a plain, palpable invasion of rights secured by the (Constitution).” 

The court explained that both versions of the plaintiffs’ complaint failed to plead that the public health measures “lacked a real or substantial relation to protect public health,” instead simply proffering that the “order goes too far in protecting public health.” Similarly, continued the court, the amended complaint failed to lay out how the public health measures engaged in a “plain, palpable invasion of (religious assembly) rights” in violation of the Establishment Clause, instead merely providing a “rote recitation of the standard for an establishment claim.” 

The court concluded by proclaiming that “the plain terms of the challenged order show that gatherings of more than ten people are prohibited at all locations and venues” with the pleadings failing to state otherwise as to how the measures evidenced the state making a preference for non-religion over religion. As such, “none of the allegations in the amended complaint are sufficient to demonstrate a…violation of the plaintiffs’ rights under the Establishment Clause.” The law in this area, Judge Blake explained, is clear. The Establishment Clause allows challenge to a public health measure that arbitrarily or unreasonably creates non-preferential treatment for one pocket of religion. The Clause does not, however, give the judiciary the ability to “second-guess policy choices favoring one reasonable method of presenting the spread of a disease over another, which is precisely what the plaintiffs request this court do. Accordingly, the defendant’s motion to dismiss will be granted.” 

The plaintiffs are represented by the Cox Law Center and Garza & Associates