Covid-19 Government Overreach
Is a Man’s Home Still His Castle Under the Fourth and Fourteenth Amendments?
William Murphy, et al. v. State of Delaware, Justices of the Peace, et al., C.A.No. 21-415-CFC (D.Del.)
- Civil rights and constitutional law action under Title II of the Americans with Disabilities Act and the Fourth and Fourteenth Amendments, squarely presenting the legal question of whether the government may force a man and his family from their home without ever giving them prior notice or an opportunity to be heard.
- Brought on behalf of a blind African-American widower and his two young daughters against the Delaware Justices of the Peace court system, and others, arising out of an unlawful eviction of the wrong family pursuant to an alleged “evict first, ask questions later” policy during the eviction moratorium amidst the COVID-19 pandemic.
How the Pandemic Power Grab Failed in Delaware to Dictate Religious Rites and Rituals.
Sixteen well-known words in the First Amendment to the United States Constitution address religion – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” But its barely known counterpart in the ‘first freedom’ contained in the Delaware Constitution has 8 times as many words explaining the limits of state power in the realm of religious exercise, belief and practice. The 128 words of Art. I, § 1 state –
Although it is the duty of all persons frequently to assemble together for the public worship of Almighty God; and piety and morality, on which the prosperity of communities depends, are hereby promoted; yet no person shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his or her own free will and consent; and no power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship, nor a preference given by law to any religious societies, denominations, or modes of worship.
These foundational words trace their constitutional lineage back to Art. I, § 1 of the Delaware Constitution of 1792, and their historical lineage to the Declaration of Rights and Fundamental Rules of the Delaware State of 1776.
The very position of Governor of the State of Delaware was not created until Art. III, § 1 of the same Delaware Constitution. In other words, Delaware government was constitutionally forbidden from entering the religious sphere before the different branches of Delaware government were even created.
Equally important, the Delaware Constitution also bars the Governor from exercising any power to suspend laws enacted by the legislature. That power is reserved exclusively for the General Assembly, the legislative body. See Del.Const. Art. I, § 10 (“No power of suspending laws shall be exercised but by authority of the General Assembly.”).
And then the Covid-19 pandemic hit and, it would appear, both the Delaware and U.S. Constitutions were forgotten by the Governor of Delaware.
Rev. Dr. Christopher Alan Bullock v. Delaware Governor John Carney, C.A.No. 20-674-CFC (D.Del.)
- The only successful case challenging Delaware Governor John Carney’s executive overreach and abuse of power during the Covid-19 pandemic.
- During the first several months of the Covid-19 pandemic, Governor Carney designated 237 categories of “essential” businesses that could operate despite his state-wide lockdown. He allowed 236 of these categories – including liquor stores, big box stores, grocery stores and law firms – to operate at full capacity with no restrictions. Only one category – religious worship in churches – was limited in capacity to 10 persons maximum, no matter how large a church’s sanctuary. In his own words broadcast across the Delaware media, he admitted the “effect[]” of his orders was a complete and total shutdown of religious worship in Delaware. Celebration of the Resurrection of Jesus Christ on Easter Sunday was criminalized and the penalty for violation of his ban on religious worship was six months in state prison.
- On May 13, 2020, the Firm sent a letter to Governor Carney on behalf of the Rev. Dr. Christopher Alan Bullock and other members of the Committee to Save Christmas. The letter noted that although good faith mistakes can happen in an emergency, more than two months had now passed and the Governor’s ban on religious worship was clearly unconstitutional under both the First and Fourteenth Amendments. The Firm offered to assist the Governor in crafting new rules that respected treasured constitutional freedoms while also protecting public health.
- Five days later, on May 18, 2020, the Governor responded by doubling down and presenting Churches with a stark Hobson’s choice:
- They could continue to operate at 10 persons or less in what he had already admitted was an effective shutdown of religious worship in Delaware; or
- They could open at 30% capacity if, and only if, they surrendered to him their sincerely held religious beliefs and allowed him to dictate both the form and content of their religious worship services, in at least 15 different ways, including:
- Banning any and all religious services on 6 out of 7 days every week;
- Banning persons age 65 or older from all Church attendance;
- Banning Baptism;
- Banning Communion;
- Banning the use of Holy Water;
- Limiting worship services to 60 minutes maximum;
- Banning all Church related ministries, including drug and alcohol counseling;
- and many others.
- The next morning, on May 19th, the Firm filed a federal lawsuit on behalf of Rev. Dr. Bullock personally in U.S. District Court for the District of Delaware, invoking the protections of the First Amendment’s Free Exercise, Establishment and Free Speech clauses, as well as Article I, Section 1 of the Delaware Constitution of 1897. In doing so, Rev. Dr. Bullock sought to protect the many small churches comprising the African-American faith community all across Delaware, which lacked the wealth and technology of other larger congregations in the state to transition to online services for many months on end.
- Upon being hauled into federal court and facing the pending threat of a temporary restraining order, Governor Carney abruptly changed his tune and began to backpedal, abandoning many of his previously ironclad religious restrictions so quickly that, at the marathon four hour court hearing which followed, the U.S. District Judge observed “I think that Pastor Bullock has succeeded already to a significant degree in that since the filing of the complaint, some legitimate issues that the complaint alleged respecting … the constitutionality … of the regulations then in place have been addressed and that we are now in a very different landscape than we were when the complaint was originally filed.” (5/28/20 TRO tr. at 4).
- Governor Carney, however, dug in his heels and still obdurately refused to give up certain of his criminally enforced, targeted religious mandates.
- One was that a Pastor wear a face-mask while preaching to his congregation and, if he refused, that he turn his back to his congregation and preach to the back wall of his Church. In the carefully chosen words of one of the Governor’s own lawyers, “the Governor’s position is that a preacher must wear a mask or face shield while preaching, and if they cannot, then they should not face directly to the congregation when they are projecting their voice.” (5/28/20 tr. at 38).
- Of course, the Governor did not practice what he preached. For at least three months, from March through June of 2020, Governor Carney gave near daily press conferences to numerous members of the media and the public where he did not wear either a face mask or a face shield while speaking. He faced his audience at all times and spoke at length. He did not turn his back to the audience or to the cameras. He did not speak to the wall behind him.
- Nor did other politicians in Delaware. For example, on June 1, 2020, then former Vice President, now President, Joseph R. Biden, Jr., spoke at an urban African-American church in downtown Wilmington, Delaware, to an audience of African-American pastors, including Rev. Dr. Bullock, and the media. The President also did not wear either a face mask or a face shield while speaking. He faced his audience at all times and spoke at length. He did not turn his back to the audience or the cameras. He did not speak to the wall behind him.
- For these and additional reasons, the Court “was a bit surprised that counsel for the Governor took the position that there is a requirement that the pastor wear the mask.” (5/28/20 tr. at 88).
- Another requirement Governor Carney refused to abandon were his specifically mandated religious procedures, including a ban on holding or in any way touching a person during Baptisms in African-American Baptist Churches such as Rev. Dr. Bullock’s, and in all other Churches as well.
- In the judge’s words, the Governor’s rule “prescribes the manner in which a baptism is to be conducted, at least in part, and it has prohibitions about it, but it has got prescriptions.” (6/2/20 tr. at 8).
- In questioning five attorneys for the Governor, including the State Solicitor, the judge said, “I mean, let me ask the counsel for the Governor at the outset. Do you know of any other occasion in Delaware law or in any other law in the United States where specific procedures have been prescribed for baptisms in the way they have in the guidance that was issued pursuant to the modifications to the State of Emergency declaration?” The response from the Governor, “I do not.” (6/2/20 tr. at 7).
- In the Court’s incredulous words, “that the State not surprisingly is unable to point to any case ever or situation ever where a State has dictated how a baptism should be performed by a religious organization, that ought to tell you something.” (6/2/20 tr. at 10-11).
- Relatedly, at the same time he targeted the Christian religious rite of Baptism, Governor Carney refused to extend his prohibitions on touching or holding to the religious rites of other of his more favored religious groups, such as circumcisions within the religious faith of Judaism, or other religious rites within, for example, the Muslim or Hindu faiths.
- Governor Carney publicly defended his actions by claiming that he had relied upon his handpicked and preferred ‘Delaware Council of Faith-Based Partnerships,’ the Chairman of which was a Jewish Rabbi whose religious practices were left unmolested. Coincidentally, there were no Baptist or other clergy representatives of Evangelical, Protestant or Catholic Christianity on the Governor’s council of preferred faiths.
- But yet again, the federal judge was unimpressed by this defense which violated long established Establishment Clause principles, observing the legal “landscape changes drastically” when the Governor’s criminal mandates “treat Jewish circumcisions differently than Protestant baptisms.” (6/2/20 tr. at 28-29).
- One was that a Pastor wear a face-mask while preaching to his congregation and, if he refused, that he turn his back to his congregation and preach to the back wall of his Church. In the carefully chosen words of one of the Governor’s own lawyers, “the Governor’s position is that a preacher must wear a mask or face shield while preaching, and if they cannot, then they should not face directly to the congregation when they are projecting their voice.” (5/28/20 tr. at 38).
- After the Court expressed its views, Governor Carney tentatively abandoned his many orders and other attacks on religious worship and retreated back to the very same First Amendment standards Rev. Dr. Bullock and the Committee to Save Christmas had urged on him in their May 13th letter, which the Governor had earlier ignored. Many months of legal wrangling followed, where the Governor urged the Court and Rev. Dr. Bullock to ‘trust him,’ that he had learned his lesson and he would not repeat his mistakes of the past. But knowing the nature of pie-crust promises made by politicians, Rev. Dr. Bullock fought on.
- Months later, on the eve of Governor Carney’s deposition, with a trial date scheduled, the case was settled. In exchange for Rev. Dr. Bullock dropping his lawsuit, the Governor agreed:
- “not to impose restrictions that specifically target houses of worship,” including all of the restrictions challenged above;
- if he ever resumed using his earlier ‘Essential Businesses’ designation, that Delaware Churches would be designated as “Essential;” and
- that the First Amendment does not take a vacation during a pandemic and he would stick to its constitutional standards in the future.
- In an editorial entitled “Covid and the Church in Delaware – Gov. Carney caves after he’s sued for targeting religious services,” the Editorial Board of the Wall Street Journal aptly exclaimed, “Praise the Lord.” In Rev. Dr. Bullock’s words to the Wilmington News Journal, “It’s time to move on. We need to heal our country and heal our state and the Church of Jesus Christ stands on a sure foundation.”
- The legal position taken by Rev. Dr. Bullock and the Firm in the lawsuit (see, e.g. TRO Opening Brief, Letter Response to Judge’s questions) was ultimately vindicated by the U.S. Supreme Court in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. –, 141 S.Ct. 63 (2020) (per curiam); South Bay United Pentecostal Church v. Newsom, 592 U.S. –, 141 S.Ct. 716 (2021); and Tandon v. Newsom, 592 U.S. –, 141 S.Ct. 1294, 1296-98 (2021) (per curiam). Additionally, in both High Plains Harvest Church v. Polis, 141 S.Ct. 527 (2020), and Harvest Rock Church, Inc. v. Newsom, 141 S.Ct. 889 (2020), the Supreme Court vacated all or some of the lower court limits on religious worship and remanded for consideration in light of Roman Catholic Diocese of Brooklyn.
- The Firm’s co-counsel in representing Rev. Dr. Bullock were Martin D. Haverly, Esquire, Jacobs & Crumplar, P.A. and The Rutherford Institute.
Other Matters:
Throughout the pandemic, the Firm has advised various businesses, private organizations, churches, elected officials, individuals and others on how to challenge illegal government Orders which deny treasured constitutional rights, including: the right to assemble, speak and protest illegal government acts; the right to travel; the right to work and earn an honest living; the right to go to school and seek out knowledge; and the right to receive just compensation when the government takes your property for a public good.