Diocese of Madison, WI Threatens To Sue City

Three weeks ago, I posted on the unique case of Madison, WI, which after the state supreme court voided all state COVID regulations, elected to reimpose its own, indeed going beyond previous state policies by singling out "houses of worship" for even more stringent controls. Nearly all other jurisdictions in the state were advised by their respective attorneys that the state supreme court's ruling probably applied to local jurisdictions as well and suggested at minimum that cities and counties would not have the budget to litigate the issue if it came to that.

Only the city-county of Madison and Dane, WI and Milwaukee elected to impose new restrictions given that advice, although Madison withdrew its more restrictive regulation for "houses of worship". Via this story in the Wisconsin State Journal, I find that as of Wednesday, the Diocese of Madison, WI is threatening to sue the city and county for its restrictive regulation:

A Washington, D.C.-based law firm that specializes in religious liberty cases has sent a letter to Dane County and city of Madison officials saying their coronavirus reopening plan discriminates against the Madison Catholic Diocese.

In a letter sent Wednesday on behalf of the diocese to Mayor Satya Rhodes-Conway, County Executive Joe Parisi and Janel Heinrich, director of the joint city-county health department, attorneys with the nonprofit Becket Fund for Religious Liberty and three other law firms say the county’s Forward Dane plan unconstitutionally singles out churches for tougher gathering restrictions than many other venues.

Under the plan, attendance at religious institutions is limited to 25% of their capacity, up to a maximum of 50 congregants, in the current Phase 1 of the three-phase plan. Other venues, including shopping malls, gyms and theaters, are simply limited to 25% capacity, with no specific upper limit.

. . . The diocese crafted a reopening plan based on that limit only to see the department issue a new order a few days later that added the 50-person restriction, lawyers for the diocese said.

Lawyers for the diocese called this “an abrupt and inexplicable reversal” that “means that some churches are held to as low as 5% capacity while trampoline parks, movie theaters and virtually all other entities can operate to at least 25%.”

Madison assistant city attorney Marci Paulsen acknowledged last week that when the public health department adopted the regulations in the invalidated statewide order into its own local order, the department “included religious entities as a business, thereby ensuring that religious entities were treated equally as businesses,” and under the initial order, “all businesses had the 25% capacity limit.”

But she said that with the public health department adopting the new order to replace the first one, it added a 50-person limit on “mass gatherings” and defined such gatherings as “scheduled events.”

At minimum, this shows the arbitrary, "We're making it up as we go along" nature of local jurisdictions' response to COVID, such that nobody can make good-faith plans in the face of ever-changing regulations, or indeed inconsistent enforcement.

And it's less and less clear that COVID represents a crisis. Presentation of COVID statistics in the media is less than lucid, with "case" numbers due simply to increased testing reported as a "spike", when such positive tests are almost always asymptomatic. But in general, it appears that states with fewer restrictions, like Georgia and Wisconsin, don't differ much from those with far greater restrictions, and in any case, the actual impact of COVID has proven about the same as a severe seasonal flu.

Beyond that is the puzzling situation whereby anti-police demonstrations, let alone riots and looting, are universally not subject to COVID "social distancing" enforcement. It's notable that the current Madison regulations for "mass gatherings" apply to "scheduled" events, leaving riots and such out of the criteria, since they're putatively "unscheduled".

The story linked above refers to what appear to be "consultations" between the diocese and local officials, which suggests that the diocese is following the strategy employed in Minnesota and California. So far, I've seen no update since Wednesday on the situation in Madison. Although the city cites the recent US Supreme Court case allowing substantially similar restrictions to other businesses for churches, it's worth noting that the Supreme Court ruled on regulations that were lifted or loosened at the last minute in response to the churches' appeals. Madison has so far not made equivalent changes.

I would guess that the ongoing, seemingly arbitrary changes to the regulations probably make them unenforceable in any case, especially given the general unwillingness or inability of any local authorities to enforce such limits for demonstrations or riots. I would think that any attempt to penalize a church for exceeding Madison's limits in this context would simply be thrown out of court.

If anyone finds updates on this case, I'll be grateful for links.