In a 4-3 decision by the court’s conservative majority, the state Supreme Court on Wednesday tossed Democratic Gov. Tony Evers’ “Safer-at-Home” public health order, which he had recently sought to extend to May 26.With the single state policy overturned, nothing was left in its place, and briefly all over the state, citizens filled bars to celebrate. In some cases, local mayors and county boards replaced the state policy with local policies. Most of these were patterned after the former state policy, although a few made minor changes. One of the latter was Madison and Dane County. In that case, they singled out "religious entities" for Sonderbehandlung.. . . It was the first time any state’s efforts at limiting business activity with a so-called lockdown to halt the spread of the coronavirus had been so dramatically cast aside. And it left business owners across the state caught between local officials desperate to keep COVID-19 cases in check and increasingly raucous right-wing protests.
A law professor blogger in Madison outlines the situation:
I pray to God you can read this:Based on the reasoning we're seeing from public-interest law firms like the Thomas More Society and Liberty Counsel, if the government singles out "religious entities" for any kind of special treatment over and above any other group, meeting, organization, or assembly, this is unconstitutional. We'll have to see if a Dane County church steps forward as a plaintiff in an action related to this new policy.1. Section 13.h – entitled “Wedding, funerals and religious entities” is amended to remove religious entities from the subsection.2.b. or not 2.b. — that is the question. I've got to click through to Emergency Order #28 to find those sections, and I see that Emergency Order #28 is the Governor's order that the Wisconsin Supreme Court struck down yesterday. No sooner was the state-wide order invalidated than my local government reinstated it — but not without changing the way "religious entities" are treated.
2. Section 13 aa is created entitled “Religious entities”. Religious entities must follow section 2.b.What is Section 13.h of Emergency Order #28? It groups "religious entities" with weddings and funerals among the "Essential Businesses and Operations" and permits gatherings of "fewer than 10 people." Under 2.b., the requirement is now "to use technology to avoid meeting in person, including virtual meetings, teleconference."
So, just like that, small religious groups lost their right to meet in person and must, at this late date, switch to teleconferencing. And that's what you get when local government takes over. Why did they adopt everything else the State Department of Health Services had in its orders, but change that one thing? They rushed it out on the same day the court acted, but they had the time and motivation to go harder on religious groups? How did that happen?
But this is part of a pattern that's beginning to emerge: "blue" governors are imposing generally restrictive "reopening" policies on states as a whole. Where individual counties or municipalities ask for relief, the "blue" governors slow-walk the process or actively insist the restrictive polices continue, often with threats. But if individual counties or municipalities wish to impose more restrictive policies themselves, the governors allow it.
With the governor's statewide policy overturned in Wisconsin, individual counties and municipalities nevertheless continue to be free to impose more restrictive policies. On the other hand, apparently not every Wisconsin county has replaced the state policy with a new one of its own. As a result, bars, restaurants, barbers, and other businesses are open in some parts of Wisconsin. So if you want a drink or a haircut, apparently you can drive 20 miles if you can't get one in town.
