Bullock v. Carney

463 F.Supp.3d 519

Rev. Dr. Christopher Alan BULLOCK, Plaintiff,

v.Governor John C. CARNEY, individually and in his official capacity as the Governor of Delaware, Defendant.

Civil Action No. 20-674-CFC

United States District Court, D. Delaware.

Signed May 29, 2020

Stephen J. Neuberger, Thomas S. Neuberger, The Neuberger Firm, P.A., Martin Duane Haverly, Martin D. Haverly, Attorney at Law, Raeann Warner, Thomas C. Crumplar, Jacobs & Crumplar, P.A., Wilmington, DE, for Plaintiff.

MEMORANDUM OPINION

COLM F. CONNOLLY, UNITED STATES DISTRICT JUDGE

Pending before me is Plaintiff Dr. Christopher Alan Bullock's motion for a temporary restraining order. D.I. 3.

I. BACKGROUND

Dr. Bullock, the Founder and Pastor of the Canaan Baptist Church in Wilmington, Delaware, D.I. 1 ¶¶ 3, 5, filed this lawsuit on May 19, 2020, D.I. 1. Delaware's Governor, John C. Carney, is the sole defendant named in the Verified Complaint. D.I. 1 at 1. Dr. Bullock alleges in the Verified Complaint that certain emergency orders issued by the Governor in response to the current coronavirus pandemic have deprived and continue to deprive Dr. Bullock of his rights to exercise freely his religion and enjoy equal protection under the laws as guaranteed by the First and Fourteenth Amendments of the Constitution. D.I. 1 ¶¶ 95–144.

The first of the orders in question, the State of Emergency Declaration, was issued on March 13, 2020. D.I. 15, Ex. 1. The novelty and speed of the coronavirus and the existential threat it poses have created an ever-changing crisis. Each day if not hour, doctors and scientists offer new and sometimes contradictory opinions about the nature of the virus and how best to treat it and slow its spread. Understandably, then, to date the Governor has issued 19 Modifications to his original state of emergency declaration. See Office of the Governor, Public Health State of Emergency Declarations, https://governor.delaware.gov/health-soe/ (last visited May 29, 2020). By its terms, each Modification has the force and effect of law, and failure to comply with a Modification constitutes a criminal offense under Delaware law.

On April 6, 2020, the Governor issued his Tenth Modification. D.I. 15, Ex. 5. Paragraph 1.e of the Tenth Modification expressly prohibited "houses of worship and other places of religious expression or fellowship" from holding "under any circumstances" in-person services attended by more than ten people. D.I. 15, Ex. 5 ¶ 1.e; D.I. 1 ¶ 47.

The prohibition of in-person religious services involving more than ten people was in effect on May 13, 2020 when Dr. Bullock and other members of the Committee to Save Christmas sent the Governor what Dr. Bullock calls "The Demand Letter." D.I. 1 at 15; D.I. 1 ¶ 64; D.I. 1, Ex. E at 1. The Committee alleged in the Demand Letter that the Governor's State of Emergency and the Modifications, including the Tenth Modification, that had been issued as of May 13th "illegally discriminated against religious worship" in violation of the First and Fourteenth Amendments of the Constitution. D.I. 1, Ex. E at 1.

On May 18, 2020, the Governor issued the Eighteenth Modification, to become effective on May 20, 2020. D.I. 4, Ex. Tab A. This Modification, which remains in effect today, struck paragraph 1.e of the Tenth Modification "in its entirety" and in its place issued a provision that "permit[s]" houses of worship to hold in-person services "as long as all applicable social distancing and hygiene rules in effect ... are followed" and either (1) attendance at the service is limited to ten or fewer people or (2) attendance at the service is limited to 30% of the stated fire code occupancy of the building in which the service was held and the service "satisf[ies] the requirements" of the "Guidelines for Safe Worship" issued by the Delaware Division of Public Health (DPH). Id. ¶ A.2.

DPH issued its first set of "guidelines" under the heading "Guidance for Communities of Worship" the same day the Governor signed the Eighteenth Modification. D.I. 1, Ex. F. To be clear, both "Guidance" and "Guidelines" are misnomers, as many of the provisions issued by DPH on May 18th were mandatory and therefore, under the terms of the Eighteenth Modification, carried the force of law and could have resulted in criminal penalties if not followed. Tr. 14:2–8. The May 18th Guidance, for example, prohibited religious organizations from holding services on more than one day a week and from allowing any service to exceed 60 minutes in length. D.I. 1, Ex. F at 1. It also barred persons over 65 years old from attending religious services, id. at 1, and it made it illegal to hold a microphone during a religious service and to have a choir participate in the service, id. at 2. In addition, the May 18th Guidance made it criminal to administer Communion "person-to-person," id. at 3, to use religious hymnals and prayer books during a religious ceremony, id. , and to hold a person during a baptism, id. at 4.

Dr. Bullock filed his Verified Complaint on May 19th. D.I. 1. The Verified Complaint discusses the Governor's State of Emergency Declaration and Modifications and the May 18th Guidance, D.I. 1 ¶¶ 36, 38, 40, 42, 79–81; and it alleges that the prohibitions and restrictions set forth in the Eighteenth Modification and May 18th Guidance violate the Establishment Clause of the First Amendment and infringe Dr. Bullock's constitutional rights to free exercise of religion, speech, assembly, association, and equal protection under the laws, D.I. 1 ¶¶ 95–144.

Late in the afternoon on Friday, May 22nd, Dr. Bullock filed the motion for a temporary restraining order now before me. D.I. 3. Dr. Bullock requests by his motion that I issue an order before May 31, 2020 to "enjoin and restrain" the Governor and any state actor from enforcing against "[Dr. Bullock] and those he represents" the State of Emergency Declaration; certain Modifications to that Declaration, including the Eighteenth Modification; and DPH's guidelines, including the May 18th Guidance. D.I. 3, Ex. 1 at 1–2. Dr. Bullock states in his motion that he "seeks to preserve a status quo defined by the Fourth Modification of the State of Emergency ..., with definition as an ‘Essential Business’ to operate under the relevant ‘Responsibilities of an Essential Business’ safety guidelines found at pages 4-5 of section 5 of that Order, which apply to 237 other ‘Essential Business.’ " D.I. 3 at 2. Notwithstanding the fact that counsel filed the motion late in the afternoon of the Friday before the Memorial Day weekend, counsel stated in the motion that "[t]he religious celebration of Pentecost ... occurs on May 31st so there is time for considered reflection by the Court before that date and no need for a hurried Temporary Restraining Order without notice." D.I. 3 at 3.

The next day, DPH withdrew the May 18th Guidance and issued new Guidance. D.I. 7, Ex. C. The May 23rd Guidance does not prohibit persons over 65 from attending religious services, Tr. 15:17–25, 17:8–12; nor does it bar the use of choirs, microphones, or person-to-person Communion, Tr. 16:17–25, 17:8–12, 21:9–12. It also does not limit religious services to one day per week and does not mandate that religious services last less than 60 minutes. Tr. 15:2–10. The May 23rd Guidance also allows communities of worship to hold "drive-in" and outdoor services with no limits on the number of attendees as long as certain requirements are met. D.I. 7, Ex. C at 4–5; D.I. 14 at 6.

There are, however, numerous mandatory provisions in the May 23rd Guidance. The revised Guidance, for example, prohibits "communal receptacles for congregants to bless themselves with holy water," D.I. 7, Ex. C at 3, the use of ushers to collect contributions, id. , and the holding of persons during their baptism, id. at 4. It also requires preachers to wear a "face covering or face shield" when they preach unless doing so would imperil their health, in which case they must preach facing away from the congregation.¹ Id. at 2; Tr. 38:10–14. And it imposes requirements such as glove wearing and handwashing on individuals who prepare or distribute consecrated or blessed food. D.I. 7, Ex. C at 3.

On the morning of Tuesday, May 26, 2020, I scheduled a telephonic argument on the pending motion and invited the Governor to submit a response to Dr. Bullock's motion and the brief filed in support of the motion. See May 26th Oral Order. The Governor filed an answering brief in opposition to the motion, D.I. 14, and I heard argument on May 28th.

II. LEGAL STANDARDS

Like a preliminary injunction, a temporary restraining order is "an extraordinary and drastic remedy ... that should not be granted unless the movant, by a clear showing , carries the burden of persuasion." Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quotation marks and citation omitted). The purpose of a temporary restraining order "is to preserve the status quo so that a reasoned resolution of a dispute may be had." Procter & Gamble Co. v. Bankers Tr. Co. , 78 F.3d 219, 226 (6th Cir. 1996) ; see also Hope v. Warden York Cty. Prison , 956 F.3d 156, 160 (3d Cir. 2020) ("TROs are ordinarily aimed at temporarily preserving the status quo."). The Third Circuit has defined the status quo as "the last, peaceable, noncontested status of the parties." Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt., LLC , 793 F.3d 313, 318 (3d Cir. 2015) (quotation marks and citation omitted).

To obtain a temporary restraining order, a movant "must establish that he is likely to succeed on the merits" and will "suffer irreparable harm in the absence of preliminary relief ...." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). If a movant can meet its burdens on the first two factors, then the court should consider two more factors: whether "the balance of equities tips in [the movant's] favor" and whether "an injunction is in the public interest." Id. At...